ERTC Ends Early

This week, President Biden signed into law the Infrastructure Investment and Jobs Act (a/k/a the bipartisan infrastructure bill). One of the provision terminates the employee retention credit (ERTC) earlier than it was scheduled to sunset. So, the ERTC will not be available for the fourth quarter of 2021 – the third quarter of 2021 will be the final quarter for which an employer can claim the ERC.

Contractor and Healthcare Mandate Remains

Even though the ETS is stayed, 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 in those sectors should continue to comply with these regulations.

BUT:

Lawsuits Filed Challenging CMS

On November 10, 2021, 10 states led by the Missouri attorney general, filed a lawsuit in the U.S. District Court for the Eastern District of Missouri seeking a declaratory ruling, as well as preliminary and permanent injunctions enjoining CMS from imposing the IFR’s mandate. Alaska, Arkansas, Iowa, Kansas, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming are the other states that joined in the suit.

Latest on ETS – Sixth Circuit Will Take The Next Step

A lottery took place to determine which circuit court will hear appeals in the numerous challenges to the ETS in a consolidated manner. The US Court of Appeals for the 6th Circuit has been selected via a random drawing to review consolidated litigation over OSHA’s ETS. The case will be argued before a three-judge panel of the 6th Circuit, on which appointees of Republican presidents account for 11 of the 16 judges overall, increasing the likelihood that the ETS will not survive.

Since the stay, OSHA has announced it will “take no steps to implement or enforce” the Emergency Temporary Standard (ETS) until the courts issue further direction. 

Written by: Gordon M. Berger, Partner 

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