Legal Alert – OSHA Vaccine/ERTC Changes

OSHA Reporting for Vaccine Reactions

On April 20, 2021 OSHA issued guidance regarding employers’ obligation to record adverse reactions to the COVID-19 vaccine.  The guidance, which is a Q&A, clarifies that if an employer adopts a mandatory vaccination policy, an adverse reaction to the COVID-19 vaccine is recordable on an employer’s OSHA 300 log if the reaction is: (1) work-related; (2) a new case; and (3) meets one or more of the general recording criteria set forth in 29 C.F.R. 1904.7.

According to the guidance, if an employer requires employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related.  Therefore, the adverse reaction is recordable in the OSHA 300 log if it (i) led to the employee missing more than one day of work; (ii) required medical treatment beyond first aid; or (iii) resulted in restricted work or transfer to another job.  

Employers that recommend the vaccine, but do not require it, do not need to record adverse reactions.

ERTC Changes – Q3 and Q4 2021

Beginning in the third quarter of 2021, the following modifications apply will apply to the ERTC:

• Applicable employment taxes are the employer’s share of Medicare (also called hospitalization insurance or HI) taxes (equal to 1.45% of the wages) and the amount of the tax under the Railroad Retirement Tax Act payroll tax that is attributable to the employer’s HI tax rate. For the first and second quarters of 2021, ‘‘applicable employment taxes’’ were defined as the employer’s share of Social Security tax (equal to 6.2% of the wages) and the amount of the tax under the Railroad Retirement Tax Act payroll tax that was attributable to the employer’s Social Security tax rate.

• Recovery startup businesses are qualified employers. A recovery startup business is generally a business that began operating after February 15, 2020, and that meets certain gross receipts requirements. A recovery startup business will be eligible for an increased maximum credit of $50,000 per quarter, even if the business has not experienced a significant decline in gross receipts or been subject to a full or partial suspension under a government order.

• A ‘‘severely financially distressed’’ employer who has suffered a decline in quarterly gross receipts of 90% or more compared to the same calendar quarter in 2019 will be able to treat all wages (up to the $10,000 limitation) paid during those quarters as qualified wages. This rule will allow a large employer (i.e., an employer with over 500 employees) under severe financial distress to treat those wages as qualified wages whether or not its employees actually provide services.

• The statute of limitations for assessments relating to the ERTC will not expire until five years after the date that the original return claiming the credit is filed or treated as filed. For example, if the Form 941 for the fourth quarter of 2021 claiming the ERTC is treated as filed on April 15, 2022, the return could be audited with respect to the ERTC as late as April 14, 2027.

Written by: Gordon M. Berger

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