On January 14, 2022, the Centers for Medicare and Medicaid Services (CMS) issued guidance on enforcement of its Interim Final Rule mandating COVID-19 vaccination for healthcare providers certified by Medicare or Medicaid.
Enforcement is delayed until February 13, 2022 for states that participated in the cases that went before the Supreme Court: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming. Covered facilities must have policies and procedures in place for ensuring COVID-19 vaccination of all employees must either have received the first dose or have made an exemption request, been granted an exemption, or been identified as having a CDC-recommended temporary delay. Then, by March 15, 2022 , covered facilities must ensure that all employees are fully vaccinated unless they have been granted an exemption or have a CDC-recommended temporary delay.
Covered facilities in all other states, except Texas, are required to follow CMS’s previous guidance issued on December 28, 2021. The deadlines for compliance for those states are January 27 (30-day deadline) and February 26 (60-day deadline).
Note in Texas there is still a preliminary injunction in effect preventing CMS from enforcing its vaccine mandate. The US government filed an appeal, but given the Supreme Court’s decision, it looks like a stay will be granted.
LA Supreme Court Says Private Employers May Mandate Employee Vaccinations
In Hayes v. University Health Shreveport, the Louisiana Supreme Court upheld a private employer’s COVID vaccine mandate. Relying on the state’s well-established employment-at-will doctrine, the court held that a private employer is entitled to set whatever conditions and terms of employment it wants, including a COVID vaccine mandate, provided those conditions and terms do not run afoul of federal and state laws.
The lawsuit was filed by several employees who challenged a mandatory COVID vaccine policy that required all employees to be fully vaccinated by Oct. 29, 2021, absent any religious or medical accommodation exemptions. Employees who failed to comply with the vaccine policy were subject to disciplinary action, including but not limited to termination. The Louisiana Supreme Court said the employment-at-will doctrine allows employers to dismiss at-will employees at any time for any reason, unless it violates existing federal or state law. The ruling could be beneficial to private employers that seek to enforce mandatory vaccine policies in at-will employment states.
USDOL Penalties Increased
The below tables reflect the DOL’s 2022 annual inflation adjustments to the civil money penalties for violations of certain requirements under ERISA, effective January 15, 2022.
| ERISA Provision | Description of Violation | Maximum 2022 Penalty (As Adjusted) |
| ERISA § 209(b) (29 U.S.C. §1059(b)) | Failure to furnish certain reports (for example, pension benefit statements) or to maintain employee records | $33 |
| ERISA § 502(c)(2) (29 U.S.C. § 1132(c)(2)) | Failure or refusal to properly file a plan’s annual report (Form 5500) (see Practice Note, Form 5500 for Employee Benefit Plans: Overview) | $2,400 |
| ERISA § 502(c)(4) (29 U.S.C. § 1132(c)(4)) | Failure to (i) notify participants of certain benefit restrictions or limitations under Internal Revenue Code (Code) Section 436(f); (ii) for multiemployer plans, (A) provide certain financial and actuarial reports and (B) provide estimates of withdrawal liability; and (iii) furnish automatic contribution arrangement notices (QACA notices) (see Standard Document, Safe Harbor Notice for Qualified Retirement Plans with Optional QACA Provisions) | $1,899 |
| ERISA § 502(c)(5) (29 U.S.C. § 1132(c)(5)) | Failure of a multiple employer welfare arrangement (MEWA) to file an annual report | $1,746 |
| ERISA § 502(c)(6) (29 U.S.C. § 1132(c)(6)) | Failure to provide information requested by the Secretary of Labor under ERISA Section 104(a)(6) | $171 per day; not to exceed $1,713 per request |
| ERISA § 502(c)(7) (29 U.S.C. § 1132(c)(7)) | Failure to provide a required blackout notice and notice of right to divest employer securities (see Standard Document, Blackout Notice) | $152 |
| ERISA § 502(c)(8) (29 U.S.C. § 1132(c)(8)) | Failure of multiemployer plan in endangered status to adopt a funding improvement plan (or if in critical status, a rehabilitation plan) Failure also applies to an endangered status plan (that is not a seriously endangered status plan) that fails to meet its benchmark by end of funding improvement period (see Practice Note, Multiemployer Pension Plans) | $1,507 |
| ERISA § 502(c)(9)(A) (29 U.S.C. § 1132(c)(9)(A)) | Per day failure by an employer to inform employees of coverage opportunities under the Children’s Health Insurance Program (CHIP) (ERISA Section 701(f)(3)(B)(i)(l)) (each employee a separate violation) | $127 |
| ERISA § 502(c)(9)(B) (29 U.S.C. § 1132(c)(9)(B)) | Per day failure by a plan to timely provide to any state information required to be disclosed under ERISA Section 701(f)(3)(B)(ii) (also regarding CHIP) (each participant or beneficiary a separate violation) | $127 |
| ERISA § 502(c)(10) (29 U.S.C. § 1132(c)(10)) | Failure by a plan sponsor of a group health plan, or a health insurer offering coverage in connection with the plan, to satisfy ERISA’s requirements regarding genetic information (multiple subparts) (see Practice Note, GINA Compliance for Health and Welfare Plans) | $127 $3,192 $19,157 $638,556 |
| ERISA § 502(c)(12) (29 U.S.C. § 1132(c)(12)) | Failure of a Cooperative and Small Employer Charity (CSEC) plan sponsor to establish or update a funding restoration plan | $117 |
| ERISA § 502(m) (29 U.S.C. § 1132(m)) | Failure of fiduciary to make a proper distribution from a defined benefit plan under ERISA Section 206(e) | $18,500 |
| ERISA § 715 (29 U.S.C. § 1185d and 42 U.S.C. § 300gg-15) | Failure to provide summaries of benefits and coverage (SBCs), as required under the Affordable Care Act (ACA) (Section 2715 of the Public Health Service Act (PHSA); 42 U.S.C. § 300gg-15) (see Practice Note, Summaries of Benefits and Coverage Under the ACA) | $1,264 |
Table of Adjusted Penalties for Violations of Select WHD Requirements
| Statute/Regulation | Description of Violation | 2022 Penalty (As Adjusted) |
| MSPA, 29 U.S.C. § 1853(a)(1); 29 C.F.R. § 500.1(e) | Violation of MSPA or any of its regulations | $2,739 |
| INA, INA § 218(g)(2) (8 U.S.C. § 1188(g)(2)); 29 C.F.R. § 501.19(c) | Violation of work contract or of H-2A visa program’s statutory or regulatory requirements | $1,898 |
| INA, INA § 218(g)(2) (8 U.S.C. § 1188(g)(2)); 29 C.F.R. § 501.19(c)(1) | Willful violation of work contract or of H-2A visa program’s statutory or regulatory requirements, or for each act of discrimination prohibited by Section 501.4 | $6,386 |
| INA, INA § 218(g)(2) (8 U.S.C. § 1188(g)(2)); 29 C.F.R. § 501.19(c)(2) | Violation of housing or transportation safety and health provision of work contract or of H-2A visa program’s statutory or regulatory requirements that proximately causes worker’s death or serious injury | $63,232 |
| INA, INA § 218(g)(2) (8 U.S.C. § 1188(g)(2)); 29 C.F.R. § 501.19(c)(4) | Repeat or willful violation of housing or transportation safety and health provision of work contract or of H-2A visa program’s statutory or regulatory requirements that proximately causes worker’s death or serious injury | $126,463 |
| INA, INA § 218(g)(2) (8 U.S.C. § 1188(g)(2)); 29 C.F.R. § 501.19(d) | Failure to cooperate with WHD investigation into H-2A violation | $6,386 |
| INA, INA § 218(g)(2) (8 U.S.C. § 1188(g)(2)); 29 C.F.R. § 501.19(e) | Laying off or displacing a US worker employed under circumstances specified in Section 501.19(e) | $18,970 |
| INA, INA § 218(g)(2) (8 U.S.C. § 1188(g)(2)); 29 C.F.R. § 501.19(f) | Improperly rejecting a US worker applicant for employment in violation of the H-2A visa program’s statutory or regulatory requirements | $18,970 |
| INA, INA § 258(c)(4)(E)(i) (8 U.S.C. § 1288(c)(4)(E)(i)); 20 C.F.R. § 655.620(a) | Violation of D-1 visa program involving crewmembers for longshore activities in US ports | $10,360 |
| INA, INA § 212(n)(2)(C)(ii) or (t)(3)(C)(ii) (8 U.S.C. § 1182(n)(2)(C)(ii) or (t)(3)(C)(ii)); 20 C.F.R. § 655.801(b) | Retaliation for supplying information or cooperating with investigation of employer’s compliance with INA | $8,433 |
| INA, INA § 212(n)(2)(C) (8 U.S.C. § 1182(n)(2)(C)); 20 C.F.R. § 655.810(b)(1) | Violation of H-1B visa program | $2,072 |
| INA, INA § 212(n)(2)(C) (8 U.S.C. § 1182(n)(2)(C)); 20 C.F.R. § 655.810(b)(2) | Willful violation of H-1B visa program or discrimination against an employee | $8,433 |
| INA, INA § 212(n)(2)(C) (8 U.S.C. § 1182(n)(2)(C)); 20 C.F.R. § 655.810(b)(3) | Willful violation that displaced a US worker within 90 days before and 90 days after an H-1B petition was filed | $59,028 |
| INA, INA § 214(c)(14) (8 U.S.C. § 1184(c)(14)); 29 C.F.R. § 503.23(b) | Violation of H-2B wage requirements | $13,885 |
| INA, INA § 214(c)(14) (8 U.S.C. § 1184(c)(14)); 29 C.F.R. § 503.23(c) | Violation of H-2B nondiscriminatory hiring, US hiring, and no strike or lockout provisions | $13,885 |
| INA, INA § 214(c)(14) (8 U.S.C. § 1184(c)(14)); 29 C.F.R. § 503.23(d) | Any other H-2B violation | $13,885 |
| FLSA, 29 U.S.C. § 211(d); 29 C.F.R. § 530.302 | Violation related to homeworkers – recordkeeping | Minor $22-231; Substantial $231-460; Repeated, intentional, or knowing $460-1,151 |
| FLSA, 29 U.S.C. § 211(d); 29 C.F.R. § 530.302 | Employment of homeworkers without a certificate | Substantial $231-460; Repeated, intentional, or knowing $460-1,151 |
| FLSA, 29 U.S.C. § 216(e)(2); 29 C.F.R. § 578.3(a) | Repeat or willful violation of FLSA minimum wage and overtime requirements | $1,234-2,203 |
| FLSA, 29 U.S.C. § 216(e)(1)(A); 29 C.F.R. § 579.1(a)(1)(i)(A) | Violations of FLSA child labor provisions or regulations | $14,050 |
| FLSA, 29 U.S.C. § 216(e)(1)(A); 29 C.F.R. § 579.1(a)(1)(i)(B) | Violations of FLSA child labor provisions or regulations that cause death or serious injury to an employee under age 18 | $63,855 |
| EPPA, 29 U.S.C. § 2005(a)(1); 29 C.F.R. § 801.42(a) | Violation of EPPA or of part 801 | $23,011 |
| FMLA, 29 U.S.C. § 2619(b); 29 C.F.R. § 825.300(a)(1) | Violation of FMLA posting requirement | $189 |
Table of Adjusted Penalties for Violations of Select OSHA Requirements
| Statute/Regulation | Description of Violation | 2022 Penalty (As Adjusted) |
| 29 U.S.C. § 666(a); 29 C.F.R. § 1903.15(d)(1); 29 C.F.R. § 1903.15(d)(2) | Repeated or willful violation of OSH Act Section 5, rules or orders under OSH Act Section 6, or applicable regulations | $145,027 |
| 29 U.S.C. § 666(b); 29 C.F.R. § 1903.15(d)(3) | Serious violation of OSH Act Section 5, rules or orders under OSH Act Section 6, or applicable regulations | $14,502 |
| 29 U.S.C. § 666(c); 29 C.F.R. § 1903.15(d)(4) | Other-than-serious violation of OSH Act Section 5, rules or orders under OSH Act Section 6, or applicable regulations | $14,502 |
| 29 U.S.C. § 666(d); 29 C.F.R. § 1903.15(d)(5) | Failure to correct a violation of OSH Act | $14,502 |
| 29 U.S.C. § 666(i); 29 C.F.R. § 1903.15(d)(6)) | Violation of OSH Act posting requirement | $14,502 |
Group Health Plans Must Now Pay for At-Home Covid-19 Tests
Employees who purchase over-the-counter COVID diagnostic tests can seek reimbursement for the tests from their group health plan, effective Jan. 15, according to the federal government. Frequently asked questions issued on Jan. 10 cover the scope of required coverage for over-the-counter COVID tests obtained without a doctor’s order. The FAQs include enforcement safe harbors that allow plans to (a) limit the amount required to be reimbursed for nonpreferred pharmacy and retail OTC tests, and (b) limit the amount of tests required to be covered each month without a doctor’s order.
Plans must cover the cost of the tests without imposing any cost-sharing requirements, prior authorization, or other medical management requirements, with certain exceptions. The FAQs do not modify previous guidance limiting the mandate to costs for tests that are primarily intended for individualized diagnosis or treatment of COVID. Therefore, plans are not required to cover any costs of testing for employment purposes only.
CO Criminalizes Restrictive Covenant Violations
In Colorado, there are 4 ways that restrictive covenants are lawful: (1) for the purchase and sale of a business or the assets of a business; (2) for the protection of trade secrets; (3) for the recovery of the expense of educating and training an employee under certain conditions; and (4) for executive and management personnel. Now, effective March 1, 2022, the knowing implementation of a void restrictive covenant is also a crime subject to a Class 2 Misdemeanor, i.e., up to 120 days’ imprisonment, a $750.00 fine per violation, or both.
Written by: Gordon M. Berger, Partner