Legal Alert – Return to Work/New CDC Guidelines

Workers Apprehensive to Return

More than half of U.S. adults (54%) cite barriers preventing them from returning to “brick-and-mortar” work locations during the ongoing pandemic, according to results from the latest ASA Workforce Monitor® online survey conducted by The Harris Poll among 2,055 U.S. adults 18 and older.

Among those who cite obstacles to returning to work in an in-person setting, the top three are fear of catching Covid-19 at work or during commute (57%), preference to work at home (35%), and not yet being vaccinated (34%). At the same time, nearly a quarter of U.S. adults (23%) say there are no barriers for them to return to work at an on-site location or they are already in that situation (13%). Notably, one in five U.S. adults (21%) say they wouldn’t trust any source regarding whether or not it is safe to return to brick-and-mortar work locations during the Covid-19 pandemic.

OSHA Defers to CDC Guidance

This week, in response to the CDC’s revised guidance, OSHA issued an announcement referring businesses to the CDC’s new guidance advising that fully vaccinated people no longer need to wear a mask or social distance in non-healthcare settings. But neither OSHA’s May 17 announcement nor the CDC’s May 13 release provide specific guidance to employers about whether and how they should proceed with unmasking policies and procedures. For now, this leaves employers with three choices: maintain full masking rules, require vaccinated workers to present proof of inoculation before being allowed to go mask-less, or ask employees to follow an honor system approach – with the caveat that state or local law may limit these options.

COBRA Subsidy Guidance

Also this week, the IRS came out with guidance (Notice 2021-31 (“Notice”)) on the ARPA COBRA subsidy. Some of the highlights:

  1. Depending on the plan constructions, the employer, multiemployer plan, or insurer could be entitled to the tax credit;
  2. An “assistance eligible individual” or “AEI” is someone:
    1. whose COBRA qualifying event was either a reduction in hours or an involuntary termination of employment;
    2. who is not eligible for Medicare; and
    3. who is not eligible for coverage under any other group health plan, including a new employer’s group health plan or a spouse’s employer’s group health plan.
  3. Employers who sponsor fully-insured plans under state mini-COBRA are not entitled to a tax credit;
  4. The available tax credit does not include employer subsidies;
  5. The premium amount includes any administrative costs otherwise allowed (usually 102% of the applicable premium under IRC § 4980B(f)(4)). See Q/A-64.
  6. Premium payees with no employment tax liability are entitled to claim the tax credit;
  7. Employers that use third-party payers may be entitled to a tax credit (which includes PEOs);
  8. A self-certification of eligibility is recommended, but not required (but I recommend it);
  9. COBRA premium assistance is available for dental, vision, and health reimbursement arrangements too.

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Written by: Gordon M. Berger

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