The COVID national emergency ended on April 10^th and in anticipation of this plus the termination of the COVID public health emergency, three federal agencies issued guidance for employers. Congress failed to override a presidential veto of legislation attempting to block a Department of Labor regulation stating that pension managers may consider environmental, social, and corporate governance (ESG) when making investment decisions. The Equal Employment Opportunity Commission (EEOC) has increased penalties for failing to display the required poster, two federal agencies have entered into a partnership to collaborate on efforts to protect workers, and the National Labor Relations Board (NLRB) has reported increased activity during the first six months of the current fiscal year.

COVID National Emergency Ends – On April 10^th, President Biden signed legislation (H.J. Res. 7) that ended the COVID national emergency. The separate COVID public health emergency was scheduled previously to end on May 11^th.  The U.S. Departments of Labor, Health and Human Services, and the Treasury have issued guidance in the form of frequently asked questions that are designed to assist employers deal with the end of the national emergency and public health emergency. Here are some highlights from the guidance:

Concerning diagnostic testing, the Families First Coronavirus Response Act (FFCRA) required health insurance plans to cover COVID diagnostic tests without imposing any cost-sharing requirements, prior authorization, or other medical management requirements. With the end of the public health emergency on May 11^th, health insurance plans will no longer be required to cover COVID diagnostic tests and associated items. Plans that choose to provide coverage for COVID diagnostic tests can impose cost-sharing requirements, prior authorization, or other medical management requirements. The agencies issuing the guidance encourage health insurance plans to “continue to provide this coverage without imposing cost sharing or medical management requirements.”

The issuing agencies encourage health insurance plans to notify participants if it intends, to stop coverage for diagnostic tests or to impose cost-sharing, authorization, or other requirements after the public health emergency ends. Notice will be considered to have occurred if the plan previously notified participants of the general duration of the additional benefits coverage or reduced cost sharing. Notification provided for a previous plan year would not satisfy the obligation to provide advance notice in the current plan year.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act requires after the end of the public health emergency that health insurance plans continue to cover vaccines and other preventive services without cost sharing when received from in-network providers. The health insurance plan is not required to provide benefits that are delivered by an out-of-network provider.

The national emergency declaration resulted in the extension of timeframes concerning employee benefit deadlines until the earlier of one year or 60 days after the end of the COVID national emergency. The election of COBRA coverage was one of the deadlines impacted and effective June 9th this will revert to the previous 60 day deadline after an individual was first eligible to elect coverage. This date is 60 days after the end of the national emergency.

The Internal Revenue Service issued a notice in 2020 providing that a high deductible health insurance plan could offer medical services relating to the testing and treatment of COVID prior to the satisfaction of the applicable minimum deductible and despite this, individuals participating in the plan could contribute to a health savings account (HSA). The guidance provides that the IRS and the Treasury Department are reviewing the appropriateness of continuing this relief given the upcoming end of the public health emergency. Any future modification would not require changes in the middle of a plan year.

Congress Fails to Override Veto Block of ESG Regulation – President Biden issued his first veto on legislation passed by Congress that overturned a Department of Labor regulation that made it easier for pension fund managers to consider environmental, social, and corporate governance (ESG) when making investment decisions. The regulation became effective on January 30, 2023.

The new rule modifies a rule that had been promulgated in 2020. According to the DOL, the final rule clarifies that a fiduciary’s duty of prudence has to be based on “factors that the fiduciary reasonably determines are relevant to a risk and return analysis and that such factors may include the economic effects of climate change and other ESG considerations on the particular investment or investment course of action.” The new rule does not require consideration of ESG when making investment decisions.

EEOC Increases Penalty for Poster Violations – The Equal Employment Opportunity Commission (EEOC) has increased the fine for failure to display the required poster from $612  to not more than $659 for each offense.  The Federal Civil Penalties Inflation Adjustment Improvement Act of 2015 requires that the monetary penalty for violation of the notice-posting requirements in Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Genetic Information Non-Discrimination Act be adjusted annually. These laws require that covered employers and others post notices describing the laws in prominent and accessible places. In October 2022, the EEOC published an updated Know Your Rights: Workplace Discrimination Is Illegal poster. 

NLRB and CFPB Agree to Partnership to Protect Workers – The National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) signed a memorandum of understanding establishing a partnership designed to collaborate on efforts to protect workers and address employer practices concerning surveillance, monitoring, data collection, and employer-driven debt resulting from requirements for workers to purchase equipment, supplies, or complete mandated training. The agencies intend to share information, cross-training staff, and partner on investigative efforts. According to NLRB General Counsel Jennifer Abruzzo, “As our economy, industries, and workplaces continue to change, we are excited to work with CFPB to strengthen our whole-of-government approach and ensure that employers obey the law and workers are able to fully and freely exercise their rights without interference or adverse consequences.”

NLRB Reports Increased Activity – The National Labor Relations Board (NLRB) advised that during the first six months of the current fiscal year (October 1–March 31), unfair labor practice (ULP) charges filed with the NLRB have increased 16%—from 8,275 to 9,592. Continuing a trend from last fiscal year, during the first six months of this fiscal year, the NLRB reported that union representation petitions continued to increase — up to 1,200 from 1,174. According to the NLRB, a total of 10,792 cases have been filed with its field offices, which is an increase of 14% over the same period in the prior fiscal year.  “I’m proud of NLRB Field and Headquarters staff for processing cases with professionalism and care, even as our caseload increases,” said NLRB General Counsel Jennifer Abruzzo.