Supreme Court Stays OSHA ETS Vaccination and Testing Mandate, and Other Important Updates

On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS) ruled to stay the Occupational Safety and Health Administration’s (OSHA) vaccination and testing emergency temporary standard (ETS). The ETS was developed to establish a mandatory vaccination policy requirement for private employers with 100 or more employees.

ETS Litigation

The ETS went into effect on and has been in litigation since Nov. 5, 2021. It was blocked by the 5th U.S. Circuit Court of Appeals early on but was reinstated by the 6th Circuit on Dec. 17, 2021.

SCOTUS Reasoning

In its published decision, SCOTUS stated that OSHA was not given the power to regulate public health more broadly than occupational dangers. In addition, SCOTUS explained that challenges to the ETS were likely to succeed on the merits because the agency lacks the authority to impose the mandate. Specifically, the OSH Act only allows the agency to set workplace safety standards, not broad public health measures.

Finally, the court argues that the requirement that employees either become vaccinated or undergo weekly testing is not an exercise of federal power. Instead, SCOTUS stated the ETS represents a “significant encroachment into the lives—and health—of a vast number of employees.”

Impact on Employers

Given this new stay, employers are not required to comply with the OSHA ETS vaccination and testing mandate at this time. However, because the case has been sent back to the 6th Circuit, employers will need to continue monitoring legal developments to learn about a final decision on the ETS.  

Issue Guidance on Coverage of OTC COVID-19 Tests  

On Jan. 10, 2022, the Depts. of Labor, Health and Human Services (HHS), and the Treasury issued FAQ guidance regarding the requirements for group health plans and health insurance issuers to cover over-the-counter (OTC) COVID-19 diagnostic tests.  

Legal Requirements

Plans issuers must cover the costs of COVID-19 tests during the COVID-19 public health emergency without imposing any cost-sharing requirements, prior authorization, or other medical management requirements.

Under guidance issued in June 2020, at-home COVID-19 tests had to be covered only if they were ordered by a health care provider who determined that the test was medically appropriate for the individual. At that time, the FDA had not yet authorized any at-home COVID-19 diagnostic tests. Since then, several types of OTC at-home tests have been approved.

As of Jan. 15, 2022, the cost of these tests must be covered, even if they are obtained without the involvement of a health care provider. However, the FAQs do not require tests to be covered if they are not for individualized diagnosis (such as tests for employment purposes).  

Plan Options

Plans and insurance issuers may place some limits on coverage, such as:

• Requiring individuals to purchase a test and submit a claim for reimbursement, rather than providing direct coverage to sellers.  
• Providing direct coverage though pharmacy networks or direct-to-consumer shipping programs and limiting reimbursements to other sources (the actual cost of the test, or $12, whichever is lower).  
• Setting limits on the number or frequency of OTC COVID-19 tests that are covered (no less than 8 tests per month or 30-day period).  
• Taking steps to prevent, detect and address fraud and abuse

Upcoming ACA Reporting Deadlines  

Affordable Care Act (ACA) reporting under Section 6055 and Section 6056 for the 2021 calendar year is due in early 2022. Specifically, reporting entities must:

• Furnish statements to individuals by March 2, 2022; and
• File returns with the IRS by Feb. 28, 2022 (or March 31, 2022, if filing electronically).

Penalties may apply for reporting entities that fail to file and furnish required returns and statements by the deadline.

A proposed rule issued on Nov. 22, 2021, extended the annual furnishing deadlines under both Sections 6055 and 6056 for an additional 30 days. This rule is in proposed form and has not been finalized. However, reporting entities may rely on the proposed rule for 2021 reporting, even before it is finalized. Reporting entities are generally encouraged to furnish statements to individuals as soon as they are able.

Action Steps

The IRS generally encourages reporting entities to furnish statements as soon as they are able. Although penalty relief has been provided in prior years for reporting entities that make good faith efforts to comply with the reporting requirements, this penalty relief is not available for reporting for tax year 2021 and subsequent years. This good faith relief was intended to be transitional to accommodate public concerns with implementing new reporting requirements under the ACA. These reporting requirements have now been in place for six years, and the IRS has determined that transitional relief is no longer appropriate. Therefore, the IRS has discontinued the transitional good faith relief after tax year 2020.

Key Dates

• February 28, 2022: Deadline for 2021 filing with the IRS in paper form
• March 2, 2022: Deadline for furnishing 2021 Forms 1095-B and 1095-C to individuals
• March 31, 2022: Deadline for 2021 filing with the IRS electronically

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