Employee Benefit Plan Limits for 2022

Many employee benefits are subject to annual dollar limits that are periodically updated for inflation by the IRS. The following commonly offered employee benefits are subject to these limits:

• High deductible health plans (HDHPs) and health savings accounts (HSAs);
• Health flexible spending accounts (FSAs);
• 401(k) plans; and
• Transportation fringe benefit plans.

The IRS typically announces the dollar limits that will apply for the next calendar year well before the beginning of that year. This gives employers time to update their plan designs and make sure their plan administration will be consistent with the new limits.

This is a chart of the inflation-adjusted limits for 2022. Most of the limits will increase, although some limits remain the same for 2022. 

Links and Resources

• Revenue Procedure 2021-25: 2022 limits for HSAs and HDHPs
• IRS Notice 2021-61: 2022 limits for retirement plans
• Revenue Procedure 2021-45: 2022 limits for health FSAs, adoption assistance, and transportation fringe benefits

Limit	2021	2022	Change
HSA Contribution Limit
Self-only	$3,600	$3,650	Up $50
Family	$7,200	$7,300	Up $100
Catch-up contributions	$1,000	$1,000	No change
HDHP Minimum Deductible
Self-only	$1,400	$1,400	No change
Family	$2,800	$2,800	No change
HDHP Out-of-Pocket Maximum
Self-only	$7,000	$7,050	Up $50
Family	$14,000	$14,100	Up $100
Health FSA
Limit on employees’ pre-tax contributions	$2,750	$2,850	Up $100
Carryover limit	$550	$570	Up $20
Dependent Care FSA*
Tax exclusion	$10,500 ($5,250 if married and filing taxes separately)	$5,000 ($2,500 if married and filing taxes separately)	Return to traditional rules
Transportation Fringe Benefits (Monthly Limits)
Transit pass and vanpooling (combined)	$270	$280	Up $10
Parking	$270	$280	Up $10
401(k) Contributions
Employee elective deferrals	$19,500	$20,500	Up $1,000
Catch-up contributions	$6,500	$6,500	No change
Adoption Assistance Benefits
Tax exclusion	$14,440	$14,890	Up $450

* This limit is not generally subject to annual adjustment for inflation. However, for 2021, the American Rescue Plan Act (ARPA) increased the limit to $10,500 (or $5,250 for married individuals filing separately) due to the COVID-19 pandemic. 

Compliance and Benefit News Updates, Dec. 3, 2021 - Vax Mandate Comparison Chart, Intermittent Fasting & More

Tools, Templates and a McGriff Survey

Vaccine Mandate Comparison Chart, McGriff Insurance Services - We have prepared a chart summarizing some of the major provisions of the various federal vaccine mandates. Please note that litigation over these mandates is ongoing and subject to change. Additionally, state laws may also affect employers’ compliance responsibilities.

Compliance Updates

Biden’s Proposed Inflation Cap on Drug Prices Includes Private Insurance Plans - “Corporate groups focused on affordable employee benefits want to keep the language as is so it would provide price-increase protection for companies and their workers and not just Medicare enrollees…House Democrats passed the roughly $2 trillion social agenda legislation last Friday and sent it to the Senate…Opponents could pursue a parliamentary challenge under Senate rules, arguing that penalizing price increases by one private company on another has no bearing on federal budgetary issues. If the challenge succeeds, costs to private insurance plans would be stripped from the inflation rebates.”

The OSHA ETS Legal Battle Continues: Petitioners Request En Banc Review; Government Files Emergency Motion to Dissolve Stay - “Multiple groups of petitioners in the newly consolidated litigation and renamed challenge to the OSHA ETS, now known as the “OSHA Covid Rule Case,” Docket No, 21-7000, MCP No. 165 (6th Cir.) have asked the court to hear the OSHA challenge en banc, with all active judges in the circuit…The government has until November 30, 2021, to file one consolidated response to all the petitions for the case to be heard en banc.”

DOL Announces Rule to Increase Federal Contractor Minimum Wage - On Nov. 22, 2021, the U.S. Department of Labor (DOL) announced a new rule that will increase the minimum wage rate for federal contractor employees. The new rule implements Executive Order 14026 and increases the minimum wage for individuals performing work on or in connection with federal contracts to $15 per hour on Jan. 30, 2022.”

House Passes Build Back Better Act, Here’s What Employers Need to Know as It Goes to Senate - “While the BBBA is expected to undergo significant changes during Senate review (and may not pass at all), employers should take note of some key provisions in the House version.”

IRS Releases Final Forms for Next Round of PPACA Reporting - “The Internal Revenue Service recently released final 2021 forms for Affordable Care Act (ACA) reporting under relevant Internal Revenue Code sections – and while not much is changing in terms of information you’ll need to report, the stakes have been raised for non-compliance.”

Benefit News

Biden to announce insurance reimbursements for at-home COVID-19 tests - “The White House said that departments of Health and Human Services, Labor and the Treasury will issue guidance by mid-January clarifying that Americans with private insurance will be able to seek reimbursement for the costs of the at-home tests during the public health emergency. A senior administration official said that the new policy would impact some 150 million Americans who have private insurance. The reimbursement is not expected to be retroactive, but officials are still working out the specifics of the policy.”

Supply Chain Woes Mean Shortages Of Critical Medical Devices In California - "The logjam at the ports of Los Angeles and Long Beach — which handle 40% of all waterbound imports to the U.S. — has triggered shortages of everything from computer chips to paper products and drawn the attention of President Joe Biden. Many Californians are grappling with shortages of lifesaving medical supplies. California hospitals say medical supplies are more difficult to acquire now or are taking much longer to be delivered.... Experts say the shortages and inflation will drive health care costs up, increasing insurance premiums. In addition, some medical device suppliers are considering cutting off providing devices to patients on Medi-Cal, the state’s insurance for low-income people, as they look for ways to reduce costs."

Health & Wellness

300 Minutes a Week of Moderate Exercise May Help Ward Off Cancer - "More than 46,000 cancer cases in the United States might be prevented each year if almost all of us walked for about 45 minutes a day, according to an eye-opening new study of inactivity, exercise and malignancies. The study, which analyzed cancer incidence and the physical activity habits of nearly 600,000 American men and women in every state and the District of Columbia, found that about 3 percent of common cancers in the United States are strongly linked to inactivity. Something as simple as getting up and moving, the findings suggest, might help tens of thousands of us avoid developing cancer in the coming years."

Intermittent fasting reduces inflammation, helps the body like a diabetes medication - Intermittent fasting, characterized by cyclic periods of fasting and eating, has emerged as a popular weight loss approach in recent years. Interestingly, however, a new study reports intermittent fasting can benefit the body in yet another way: reducing inflammation. Scientists from the Intermountain Healthcare Heart Institute conclude intermittent fasting can increase levels of galectin-3, a protein linked to bodily inflammatory responses. ... 'In finding higher levels of galectin-3 in patients who fasted, these results provide an interesting mechanism potentially involved in helping reduce the risk of heart failure and diabetes,' Dr. Horne adds."

 

Federal Appeals Court Stops OSHA Vax-Mandate Saying, It "Grossly Exceeds OSHA’s Statutory Authority”

On Friday, a three-member panel of the United States Court of Appeals for the Fifth Circuit issued an order continuing its initial November 6, 2021, stay of the emergency temporary standard (ETS) that the U.S. Occupational Safety and Health Administration (OSHA) issued on November 4, 2021.

Specifically referring to the requirement as a “mandate,” the court said the rule, instituted through the Labor Department, “grossly exceeds OSHA’s statutory authority,” according to the opinion, written by Judge Kurt D. Engelhardt and joined by Judges Edith H. Jones and Stuart Kyle Duncan.

“Rather than a delicately handled scalpel, the Mandate is a one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address,” they wrote.

The order also found that the ETS “imposes a financial burden upon [private businesses and organizations] by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.” It stated that the Occupational Safety and Health Act was not intended to allow the agency to make sweeping pronouncements on matters of public health.

The 5th Circuit's order criticized the ETS for failing to “account for differences in workplaces that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the [ETS] purports to address.” The order questioned whether OSHA has shown a “grave danger” and that the ETS is “necessary.”

The court concluded that parties seeking to stop the order are entitled to a stay because:

1. they are likely to succeed on the merits and are suffering irreparable harm;
2. a stay pending adequate judicial review of the underlying motion for a permanent injunction will not harm OSHA; and
3. the public interest favors a stay.

The Biden Administration finally released its vaccine mandate after weeks of speculation that it may have simply been a September press release designed to push employers toward strict vaccination policies without any legal backing. It provides that private employers with more than 100 employees must require staff to get vaccinated — or face weekly testing and mandatory masking.

The court halted the policy, scheduled to take effect Jan. 4, and ordered the Occupational Safety and Health Administration not to further implement or enforce the mandate. The Biden administration had asked the 5th Circuit to hold off on ruling until a judicial lottery can take place next week to consolidate several challenges to the mandate before a single appeals court.

The order compels OSHA to “take no steps to implement or enforce the [ETS] until further court order,” without any geographic limitation on that restriction.

What Does This Mean for OSHA's Vaccine Mandate?

This order is the second response from the three-member panel of the Fifth Circuit to the petitioners’ motions for a “stay barring OSHA from enforcing the [ETS] during the pendency of judicial review.” The order reaffirms the court’s initial stay on November 6 and will remain in place “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.”

A further order will eventually come from the federal judicial circuit that gets assigned the consolidated petitions to review the ETS pending in 11 of the 12 United States circuit courts of appeals. On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation will conduct a statutorily required random selection to decide which circuit will hear the consolidated cases from around the country.

Who Ultimately Will Decide the Fate of the ETS?

Regardless of which federal circuit court “wins the lottery” and hears the consolidated petitions, employers should expect the Supreme Court of the United States to decide the ultimate fate of the ETS. The timing of when that will happen is unclear, but it will be at least weeks, if not months out. While OSHA could petition the Supreme Court to review the Fifth Circuit’s order rather than waiting on the lottery and ensuing proceedings at the circuit court level, OSHA is more likely to wait for the lottery, and another round of briefing. Many insiders and legal scholars believe that the Biden Administration is okay with a less than speedy final disposition of this matter so that businesses are incentivized to push for vaccinations and continue to prepare for the possible enforcement of the mandate while the courts sort it out.

Do I still need to comply with the December 6 and January 4 deadlines?

No. Because OSHA is barred from both enforcing the ETS and taking any steps to implement the ETS, the December 6 and January 4 deadlines are no longer in effect pending further court action. While the ETS is no longer in effect, the Fifth Circuit ruling has no impact on the Centers for Medicare and Medicaid Services’ (CMS) interim final rule for healthcare workers and President Biden’s Executive Order 14042 on mandatory vaccinations for federal contractors. Employers should continue to adhere to these requirements as applicable.

See also: Littler Mendelson's Fifth Circuit Enjoins OSHA from Enforcing Mandatory Vaccination or Test Emergency Regulations.

Compliance Updates and Benefit News, Week of Nov. 3

Compliance Updates

Cal/OSHA Amends Notice and Reporting Requirements for COVID-19 - On Oct. 5, 2021, California approved Assembly Bill 654 (AB 654) to amend California’s Occupational Safety and Health Administration (Cal/OSHA) COVID-19 notice and reporting regulations. The bill became effective upon adoption on Oct. 5, 2021. The bill requires employers to give notice of COVID-19 outbreaks to: Qualifying individuals or employees exposed to qualifying individuals within one business day; and Local public health agencies within 48 hours or one business day, whichever is later.

Vaccine Mandates And Vaccine Bans – Clues On Where This Ends And Making Decisions In The Interim - "Employers with 100 or more employees: While the implementation of federal policy via the OSHA ETS appears imminent, it is critical to understand that there will not be the possibility of federal preemption of state law vaccine bans until the OSHA ETS itself becomes effective and has the force of law. Once that occurs, and assuming legal challenges to OSHA’s ability to publish and enforce the ETS are rejected, federal preemption is a good bet here as well. However, unlike the executive order mandating vaccinations for all federal employees and employees of federal contractors, the OSHA ETS is expected to still allow for weekly negative COVID tests as an alternative to mandatory vaccination. That said, the Montana outright ban on vaccinations, as well as Texas’s ban on vaccination requirements for “any reason of personal conscience,” seems likely to interfere with OSHA’s exercise of authority governing workplace safety."

EEOC Updates Guidance on Religious Objections to Employer COVID-19 Vaccine Mandates - On Oct. 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued new answers to frequently asked questions (FAQs) about how employers should handle employee requests for religious exemptions from their COVID-19 vaccine mandates.

How Employers Can Handle Confidentiality and Privacy Concerns Related to Collecting COVID-19 Vaccine Information - “To many employers’ surprise, such records must be retained for the tenure of the employee – plus 30 years. This includes medical histories, medical examination results and opinions, diagnoses, progress notes and recommendations, first aid records, descriptions of treatments and prescriptions, and employee medical complaints. Some state laws also define medical records. For example…"

An Employer’s Guide to Navigating Third-Party Vaccine Mandates on Visitors, Vendors and More - “As employers implement their own internal COVID-19 protocols and procedures, many have the additional burden of complying with third-party vaccine policies or enforcing their own vaccine policies upon non-employees such as independent contractors, vendors or visitors.” 

COVID-19 Vaccination Religious Exemption Requests: 5 Key Takeaways From the EEOC’s Updated Technical Assistance - “On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance related to the COVID-19 pandemic. The updated and expanded COVID-19 technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” adds a new section (section L) with information related to requests by applicants or employees seeking to be excused from COVID-19 vaccination requirements due to sincerely held religious beliefs, practices, or observances.”

Benefit News

This couple retired in their 30s—now they live off the grid and spend $40,000 a year - "The couple formed a plan to cut their spending and save 70% of their combined income so they could quit their jobs and travel the country, living only off of the growth of their investment accounts. Steve and Courtney retired in 2016 and 2017, respectively, with a combined net worth of $870,000. Despite not adding a penny to their investments in the ensuing half-decade, they are now worth about $1.2 million and don’t plan to head back to the office any time soon."

Thousands Of State Workers Are Unvaccinated. California Isn’t Testing Half Of Them For COVID As Required - "Three months after Gov. Gavin Newsom required state workers to be fully vaccinated against COVID-19 or undergo weekly testing, his pledge that the California government would lead by example has not been fulfilled: Many public agencies face low vaccination rates, and most state-run workplaces have failed to test unvaccinated employees. At the California Department of Forestry and Fire Protection, for example, fewer than a third of employees have provided proof they are fully vaccinated, while 6,700 employees are either not vaccinated or have declined to provide their status. Cal Fire said it is testing just 75 employees."

Health & Wellness

Study links too much free time to lower sense of wellbeing - "After crowdsourcing opinions on which activities would be equated with leisure time and then calculating this time for participants, the team found that while subjective wellbeing rose with the amount of free time up to about two hours, it began to drop once it exceeded five hours."

Walking 7,000 steps a day can cut the risk of heart disease - "Taking 7,000 steps a day can keep a middle-aged person’s arteries healthy and reduce their risk of death by up to 70%, a new study concludes. The findings by researchers from across the United States suggest that this lower number is still enough to protect against serious heart complications, rather than the common recommendation of 10,000 steps per day."  

Benefit News, Tools and Compliance - Handling Requests for Vax Exemptions, Challenges to OSHA Mandate and New CA Laws

Tools, Templates and a Webinar McGriff Presents … ThinkHR (now Mineral)! October 19, 2021 | 2:00 – 3:00 pm EDT To register, please click here (Existing McGriff Clients Only) ThinkHR has changed its name to Mineral … but the valuable resources offered haven’t changed (and will even be enhanced in the coming months!). Please join us for a brief overview of ThinkHR/Mineral and its benefits available to McGriff’s Employee Benefits clients. People risk is inevitable for an organization, and reducing it is no small feat given the array of potential risks, ever-changing legislation, and the need for high-impact expertise in the moment. We are excited to bring you ThinkHR/Mineral – a robust resource that provides an end-to-end People Risk Management solution, including live HR advisors; a reliable library of sample forms, policies, and white papers; and interactive technology solutions, such as a living handbook builder and an online learning management system with 300+ training courses! If you are involved in HR compliance or employee issues at any level, this will be another valuable benefit from your trusted McGriff team that can save you time and money. McGriff Resource Net User Guide - (Existing Clients Only) We are excited to provide access to a personalized McGriff Resource Net. This online site acts as a one-stop source for all your Safety, Compliance, HR, Wellness, and other business needs. At McGriff, we continually look for innovative products and value-added services to ensure customer satisfaction. We designed the McGriff Resource Net with our clients in mind, incorporating a vast resource library with user-friendly online tools to streamline your daily work tasks. Get to know your McGriff Resource Net and how its resources can make your day easier. If you have any questions—at any time—feel free to contact your McGriff representative. Employer Flowchart: Assessing Requests for Religious Exemptions from Vaccine Mandates - "For the past 18 months, employers have faced a dizzying number of new laws, regulations and employment issues resulting from the COVID-19 pandemic. The latest announcement of COVID-19 vaccine mandates by the White House on September 9, 2021, resulted in an increase in the number of requests received by employers for religious exemptions from vaccine mandates. Employers continue to receive requests and must assess and decide whether to grant or deny the request for a religious exemption. The religious exemption analysis can prove to be challenging.... To assist employers in the decision-making process, the Husch Blackwell Labor & Employment practice group has developed a flowchart to simplify the religious exemption analysis and enable employers to make better decisions in less time." Compliance Updates What Legal Challenges Will Await the OSHA Vaccine Emergency Temporary Standard (ETS)? - "OSHA faces an uphill battle in meeting the justifications of using the ETS statutes. Here are the seven most likely arguments we expect to be launched and the counterarguments we expect OSHA to use as a shield:" Low Death Rate of COVID-19 High Numbers of Non-Serious COVID-19 Cases Limited Time Impact if ETS Implemented Timing of ETS General Applicability Arbitrary Size Determination Cost-Benefit Analysis Handling Requests for Religious Exemptions from Mandatory Vaccination Policies - "EEOC guidance from 2008 recognizes certain factors that, when viewed alone or together, may undermine an employee’s claim of a sincerely held religious belief. These include: 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. Employers should also note that, today, many “pre-fab” form objections based on allegedly sincerely held religious beliefs are available for sale on the internet from a variety of websites and “pastors.” For that reason, employers dealing with exemption requests based on religion may want to start their analysis by having an employee submit a written statement in their own words explaining their sincerely held religious belief supporting their objection to vaccination....where an employee has articulated a sincerely held religious belief, in most instances, it is best to assume its sincerity and move to the next step, engaging in the interactive process." Clarifying Guidance on COBRA Deadline Extension Relief - IRS Notice 2021-58 clarifies the application of certain COBRA deadline extensions for electing COBRA coverage and paying COBRA premiums under prior relief that was issued as a result of the COVID-19 outbreak (“Emergency Relief”). Under the Emergency Relief, up to one year must be disregarded in determining the due dates for individuals to elect COBRA coverage and pay COBRA premiums during the Outbreak Period (i.e., 60 days after the announced end of the National Emergency).  Joe Biden’s Vaccine Mandate Doesn’t Exist. It’s Just A Press Release - "Yes, we’ve heard all about Joe Biden’s alleged vaccine mandate for private companies employing 100 or more people. It was all over the news even before he announced it on September 9. His announcement has jeopardized the employment of millions of Americans and increased worker shortages in critical domains such as health care. There’s only one problem. It’s all a mirage. Biden’s so-called vaccine mandate doesn’t exist — at least, not yet. So far, all we have is his press conference and other such made-for-media huff-puffing. No such rule even claiming to be legally binding has been issued yet." California Passes Legislation Requiring Continued Health Benefits for Striking Public Employees - "Governor Newsom signed Assembly Bill 237 (AB 237), which prohibits California public employers from discontinuing employer contributions for health care or other medical coverage for employees who, during the duration of an authorized strike, fall below the minimum hours worked to qualify for employee health care coverage." Gov. Gavin Newsom has signed 770 new California laws and vetoed 66 - "Signed bills into law: (1) Making ethnic studies a high school graduation requirement, as CalMatters’ Joe Hong reports. Under a bill Newsom signed last year, California State University students must also take an ethnic studies course to graduate. (2) Mandating mental health instruction in middle and high schools that have an existing health education course. (3) Requiring public colleges, universities, and secondary schools to provide free menstrual products on campus. (4)Requiring large department stores to maintain a gender-neutral section of toys and child care items...." EEOC Files First COVID-19 ADA Accommodation Lawsuit - "On September 7, 2021, the Equal Employment Opportunity Commission ('EEOC') filed a first-of-its-kind lawsuit against an employer that allegedly denied accommodation for telework in violation of the Americans with Disabilities Act (the 'ADA'). Currently, the case is the only lawsuit the EEOC has filed concerning a request for an ADA accommodation related to COVID-19. The suit is a challenge to the typical posture of courts that frequently consider working from home to be an unreasonable accommodation." California Will Allow Electronic Distribution of Workplace Notices - California amended its Labor Code to allow employers to distribute certain workplace notices and posters electronically in addition to displaying the postings required by law. The amendment becomes effective on Jan. 1, 2022. Benefit News Do You Really Need to Save That Much for Retirement? - Financial investment and retirement "guidelines can be appealing because of their simplicity but also daunting for investors who may find themselves running far behind. On a more skeptical note, it’s also worth noting that asset-management firms (and most financial advisors) have a vested interest in getting investors to save more because higher balances translate into higher fees. In this article, I’ll run through some numbers to test whether these guidelines are reasonable and dig into the assumptions behind them. I’ll also explain why they might not be an accurate benchmark for every investor...." Employer Medical Benefit Costs Continue to Triple the Rate of Inflation Globally in 2022, Survey Forecasts - "The costs of employer medical benefits across the world are forecasted to rise 7.4 percent in 2022, outpacing general inflation by 5 percent, according to the 2022 Global Medical Trend Rates Report released today...." Governor Newsom's Cozy Relationship with Big Insurance - "The coziness of the industry’s relationship with Newsom burst into public view in late 2020 when he was photographed dining at the ritzy French Laundry restaurant with Dustin Corcoran and Janus Norman, the CEO and top lobbyist, respectively, of the state doctors’ lobby, the California Medical Association. 'There is no possible way we could have come out of this covid crisis where the health care industry was given so much power without influence coming along with that,' said Carmen Balber, executive director of the advocacy group Consumer Watchdog.... Doctors and Blue Shield have given Newsom millions of dollars to support his political career over many years, including a $20 million donation in September 2020 from Blue Shield for his homelessness initiatives. The recall effort earlier this year only solidified Newsom’s relationship with health care executives. Industry groups wrote checks to the California Democratic Party, which fought to keep Newsom in office. It received $1 million each from Blue Shield and the hospital lobby and $875,000 from the doctors’ lobby, according to state campaign finance records."

Big Government's Love Affair with Big Insurance - Even in Calunicornia

From Angela Hart and Samantha Young writing at Kaiser Health News: 

The coziness of the industry’s relationship with Newsom burst into public view in late 2020 when he was photographed dining at the ritzy French Laundry restaurant with Dustin Corcoran and Janus Norman, the CEO and top lobbyist, respectively, of the state doctors’ lobby, the California Medical Association.

“There is no possible way we could have come out of this covid crisis where the health care industry was given so much power without influence coming along with that,” said Carmen Balber, executive director of the advocacy group Consumer Watchdog.

Newsom did not respond to questions about the industry’s influence, but spokesperson Alex Stack said his proposal to regulate health care spending “is a priority for this administration, and we look forward to continuing to work on this issue to get it done.”

Doctors and Blue Shield have given Newsom millions of dollars to support his political career over many years, including a $20 million donation in September 2020 from Blue Shield for his homelessness initiatives.

The recall effort earlier this year only solidified Newsom’s relationship with health care executives. Industry groups wrote checks to the California Democratic Party, which fought to keep Newsom in office. It received $1 million each from Blue Shield and the hospital lobby and $875,000 from the doctors’ lobby, according to state campaign finance records.

 

Long COVID as a Disability

In September, the EEOC announced that it recognizes that long COVID may be a disability under the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act in certain circumstances. The EEOC agreed with the analysis of “long COVID” by the Department of Health and Human Services (HHS) and Department of Justice (DOJ) in their “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” The EEOC will release technical assistance about COVID-19 and ADA “disability” in the employment context in the coming weeks. On August 2, 2021, the White House, HHS, Department of Education, and Department of Labor also hosted "A Conversation about Long COVID," reviewing and providing support to the HHS and DOJ guidance.

Brief Summary of HHS and DOJ Guidance

According to the guidance, long COVID is a disability under the:

• ADA (Titles II and III at 42 U.S.C. §§ 12101-12103, and 12131-12189);
• Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); and
• Section 1557 of the Patient Protection and Affordable Care Act (42 U.S.C. § 18116).

Note: Read more on the Office of Disability Employment Policy’s JAN website about long COVID and the ADA.

A Person with a Disability

A person with a disability is someone:

• With a physical or mental impairment that substantially limits one or more of their major life activities; or
• With a record of such an impairment; or
• Who is regarded as having such an impairment.

What is an Impairment

A person with long COVID has a disability if their condition or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities. A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:

• Lung damage
• Heart damage, including inflammation of the heart muscle
• Kidney damage
• Neurological damage
• Damage to the circulatory system resulting in poor blood flow
• Lingering emotional illness and other mental health conditions

Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.

What is a Major Life Activity

Long COVID can substantially limit one or more major life activities, which include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. It also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ.

What Substantially Limits

To “substantially limit” is construed broadly under these laws and shouldn’t require extensive analysis. The impairment doesn’t need to prevent or significantly restrict an individual from performing a major life activity, and the limitations don’t need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.

Long COVID can substantially limit a major life activity and when someone with long COVID might be substantially limited in a major life activity are varied, for instance:

• A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
• A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
• A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

However, long COVID isn’t always a disability. It requires an individualized assessment to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.

Protections

People whose long COVID qualifies as a disability are entitled to the same rights and protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557 (full and equal opportunities to participate in and enjoy all aspects of civic and commercial life).

Vax Mandate Legality - 24 States States Line-Up for the Challenge

Recently, 24 state attorneys general submitted a letter (Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming) strongly opposing President Joe Biden’s proposed COVID-19 vaccine mandate on large, private employers.  These states threaten legal action should the mandate’s efforts move forward.  Last month, Biden announced the upcoming mandate requiring employers with 100 or more employees (measured companywide, not by location) to enforce one of the following:

• Require employees to get vaccinated against COVID-19
• Require unvaccinated employees to produce evidence of a negative COVID-19 test each week

The 24 states who signed the letter made the following key allegations against the mandate, among others:

• It will affect the job market and the ability to fill positions.
• It will increase vaccine skepticism.
• It is too broad, not accounting for nuanced employee situations.
• It is outside of OSHA and federal executive authority to issue such a mandate. 

The 24 states that signed the letter largely targeted the emergency temporary standard (ETS) as the crux of their argument. The letter’s authors attest that the Occupational Safety and Health Administration’s (OSHA) ETS rules are very specific, and applying them to a vaccine mandate is an illegal overreach.  As the CATO Institute points out, "Courts have frequently struck down OSHA actions, especially when the agency has tried to issue the type of peremptory decree it calls an emergency temporary standard (ETS)." 

Walter Olson, writing at CATO, further explains: 

A word is in order about the two ways OSHA adopts rules. The standard, accepted way is to put them through the process known as “notice and comment,” building a record that it is hoped will result in more rational standards and, whether or not it does that, prepares the way for judicial review by, for example, putting the agency on the record against major objections as to its rationale for the rule.

The emergency process bypasses these protections for the regulated and for judicial review as a check. True, the process as foreseen is one in which OSHA is supposed to start developing a rule the regular way, which would at some point catch it up with the need to base its rules on a reasoned public justification. But that comes afterward. In the meantime it can use the excuse of emergency to regulate first and explain later.

To use the emergency decree power, according to the agency’s website, “OSHA must determine that workers are in grave danger” and that an emergency standard “is needed to protect them.” That is a vague and open‐​ended standard, but even so it opens up one set of possible challenges. Is a test‐​or‐​vax mandate that applies even to employees who work from home, or who have already contracted the virus and recovered, truly needed to protect other workers from “grave danger”?

Even when OSHA makes rules through its conventional process, there are real constitutional questions about the limits of its authority. In 2008, Harvard University law professor Cass Sunstein, who went on to serve as former President Barack Obama’s regulatory chief, published an article entitled “Is OSHA Unconstitutional?” He addresses the problem of “nondelegation” arising from Congress’ having seemed to bestow on the agency such wide powers, akin to those of a legislature, with so few checks.

Is it Legal?

Obviously, this is a rather large step taken at a federal regulatory level. I expect numerous legal challenges and would not be surprised if this action was delayed, perhaps even significantly so, while the court system decides if OHSA has the authority to require large employers to mandate vaccines for employees.  The fact that the President directed OSHA to make this applicable only to employers with more than 100 employees signifies that the Biden Administration believes U.S. Constitution's Commerce Clause provides the lawful basis for the regulation.

The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power to regulate commerce with foreign nations, and among the several states. 

"The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

The idea is that employers with more than 100 employees are almost certainly going to be engaged in interstate commerce or commerce across a state line. That, in and of itself, is a bold assumption. While it may be the case in most cases, it certainly is not a hard and fast rule.

In addressing PPACA's Individual Mandate in 2012, the Supreme Court held that the individual mandate could not be enacted under the Commerce Clause. The Court stated that requiring the purchase of health insurance under the AFA was not the regulation of commercial activity so much as inactivity and was, accordingly, impermissible under the Commerce Clause. The question in evaluating this new regulation will be - is the requirement that an employer with 100 or more employees compel employee vaccinations a regulation that necessarily governs interstate commerce?

Here is a sampling of legal thought on the topic:

• Mark Barnes, a former associate health commissioner of New York who teaches health law at Yale Law School, said he expects the new vaccine policy to be challenged based on arguments it is outside the mandate of OSHA, and an impermissible stretch of the U.S. Constitution’s interstate commerce clause. He said opinions of U.S. Supreme Court Justices Clarence Thomas, Amy Coney Barrett, and Neil Gorsuch could encourage a lower court to issue an injunction delaying implementation of the policy. “They are very hostile to the commerce power, and extensive use of the interstate commerce power by the federal government,” Barnes said. “I think there would be a challenge to that, a real challenge.”

• Walter Olson, Senior Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute: "In short, don’t be surprised when the new Biden vaccine mandate ends up in court. Should it reach the Supreme Court, it will be amid fresh memories of the eviction moratorium debacle, in which a majority of justices clearly signaled that it would be unconstitutional for the Biden administration to renew the expiring Centers for Disease Control and Prevention decree, and the White House went ahead and did so anyway. Slapping that down took less than a month."

• CNN legal analyst Jeffrey Toobin said that it’s unclear if President Joe Biden’s upcoming speech on Thursday that will include announcing a vaccination or testing mandate for employers with more than 100 employees will withstand a court challenge. ... “There is the question, though, of whether the federal government has the legal authority to do this. OSHA [Occupational Safety and Health Administration] supervises employee safety,” he continued. “Whether that authority extends to requiring vaccines for people in companies bigger than 100 employees, you can be sure this is going to be challenged in court. I don’t know the answer to that, but I do know that this is certainly a shot across the bow by the justice department and by the White House, saying, ‘Look, we are sick of asking. We are now telling you to get [vaccinated].”

• John Yoo, Emanuel S. Heller Professor of Law at the University of California, Berkeley, and a visiting fellow at the Hoover Institution: "OSHA has been charged with promulgating the ETS through a 'fast track' procedure provided under the OSH Act. The agency has used this procedure only sparingly in the past, and on those occasions its efforts have not stood up well in court. Before COVID, OSHA had issued only nine Emergency Temporary Standards, of which six were challenged. Of these six, the courts overturned four and partially vacated a fifth. In a successful 1984 challenge to an asbestos ETS, a reviewing court found that OSHA was not justified in taking 'resort to the most dramatic weapon in [its] enforcement arsenal.'"

• See also, Biden’s Vaccine Mandate Depends on OSHA Emergency Regulation. Here’s How That’s Fared in Court.

2021 Consolidated Appropriations Act: No Surprises Act-Key Health Plan Provisions

The Consolidated Appropriations Act (CAA), signed into law on December 27th, 2020, includes many provisions affecting employers, group health plan sponsors, and health insurance issuers. The CAA contains guidance that focuses on health plan transparency requirements and contains the No Surprises Act, which is aimed at protecting health plan participants from surprise medical bills, which can occur when patients unexpectedly receive care from out-of-network (OON) providers. 

To help clarify the CAA’s compliance initiatives, we have created the below summary and chart which breaks down each No Surprises Act requirement and CAA transparency provisions. The chart provides an effective date for each requirement and lists questions plan sponsors should be asking of their insurance carrier or TPA to help ensure compliance with the CAA.  

Your Vaccine Mandate Penalty Could Trigger Obamacare Fines

One thing employers need to keep in mind as they ponder the addition of a vaccine mandate on employees and the implementation surcharges/penalties against employees who refuse the jab is that additional penalties assessed against the employee could push the employer's plan over PPACA's affordability limits.  This would trigger a $4,060 fine back against the employer for each impacted employee.  Kyle Scott, writing over at Benefits Pro summarizes this nicely here:  

The Affordable Care Act (ACA) requires Applicable Large Employers (ALEs) to offer affordable health care benefits to eligible employees or pay a penalty. Within the ACA law lie very specific rules governing the design of wellness programs, especially regarding incentives and penalties (premium surcharges). ...

In 2021, affordability is achieved when an employee’s cost for health insurance benefits is no more than 9.83% of that employee’s household income. This percent is adjusted each year and safe harbors apply. ...

If the cost including the surcharge renders the plan as unaffordable, and the employee goes to the exchange and receives a premium tax credit, the employer may be subject to Penalty B. The $4,060 penalty per year can be multiplied by the total number of full-time employees who did not have an offer of affordable coverage and who also receive a premium tax credit. ...

While there is an exception for tobacco, there’s nothing currently in the ACA rules that similarly applies to a surcharge or penalty for non-COVID-19 vaccinated employees. ...