COVID LawIn response to the U.S. Supreme Court’s recent ruling that stopped OSHA from enforcing its mandatory COVID vaccination Rule for large employers, OSHA announced on January 25, 2022, that it is withdrawing the Rule. OSHA introduced the Rule as an emergency temporary rule in October 2021. The Rule applied to all employers nationwide with 100 or more employees, with only extremely limited exceptions. It was set to go into effect in December 2021, but a federal judge issued a nationwide injunction prohibiting OSHA from implementing the Emergency Rule.

After procedural moves resulted in the Sixth Circuit Court of Appeals being assigned the case, a three-judge panel in late December 2021 lifted the injunction. That opened the door for OSHA to begin implementation of the Rule in early January 2022, with enforcement to begin in February 2022.

Instead, the U.S. Supreme Court heard the matter on an expedited basis, taking oral arguments on January 7, 2022. The following week, the Court reinstated the injunction and blocked OSHA from implementing the Rule while the matter was being decided on its merits in the courts. Taking its cue from the Supreme Court’s written decision reinstating the injunction, OSHA apparently concluded that its argument was unlikely to prevail before the lower courts. Hence the withdrawal of the Rule, effective Wednesday, January 26.

What’s next

Continue Reading OSHA COVID Rule for Large Employers Withdrawn

Tax TimeWelcome to 2022 tax season! As the vast majority of businesses, small and large, were affected by the COVID-19 pandemic, many companies received support through the Paycheck Protection Program. However, there were many question marks with the Paycheck Protection Program, such as the timing of forgiveness and if eligible expenses are deductible for federal income tax purposes.

Timing of PPP loan forgiveness

As we all know, the Paycheck Protection Program (“PPP”) was created to assist businesses in paying their employees’ paychecks. If the funds received from PPP were used for qualified expenses, the amount of the loan was forgiven. Recently, the IRS released guidance on the timing of PPP Loan forgiveness. With some business owners not receiving their forgiveness letter in 2021, the question arose when the PPP loan will be forgiven for tax-exempt income purposes.

The IRS stated that taxpayers may treat such income as received or accrued when either:

  • expenses eligible for forgiveness are paid or incurred;
  • an application for PPP loan forgiveness is filed; or
  • PPP loan forgiveness is granted.

Thus, a taxpayer who submitted their application for forgiveness in 2021, but has not been granted forgiveness in the 2021 tax year, may choose the date of the forgiveness application, the date the forgiveness is granted, or the when eligible expenses are paid or incurred.

Expenses paid with 2020 PPP loans

Continue Reading How does receiving a PPP Loan impact filing my company’s taxes?

COVID LawAfter a protracted battle in the Courts, on January 13, 2022, the U.S Supreme Court effectively ended the Biden Administration’s efforts to mandate widespread COVID vaccinations for large employers. That day, the Court issued a stay of an OSHA emergency temporary regulation that required all employers nationwide that had 100 or more employees, regardless of industry, to implement a mandatory vaccination policy for their employees and verify that the employees were vaccinated.

The practical effect is that there will be no federal mandatory vaccination requirements for employers except for employers in the healthcare industry who receive Medicare/Medicaid funds.

What does this mean for health care providers?

healthcareFor those health care providers who receive Medicare/Medicaid funds, a 5-4 majority of the Supreme Court upheld (by refusing to issue a stay) a separate regulation that requires mandatory vaccinations for employees in that industry by February 28, 2022. Conservative Justices Roberts and Cavanaugh sided with the liberal Justices. They found that the rule was more focused since it was limited to the more traditionally regulated health care industry and thus was not the same expansive use of agency authority. Moreover, the limitation of the rule to providers that received federal funds was deemed relevant because the courts have been more relaxed in enforcing rules that basically are a condition of receipt of the government money.

Finally, there is some question whether some states (such as Florida) who generally enforce these regulations will enforce the rule. Politics, however, deem it unlikely that the Biden administration would give up enforcement if certain states don’t enforce the rule. In such cases, Florida health care providers should be cautious when making a decision to ignore the new rule.

The OSHA “Stay” Explained

Continue Reading What does the Supreme Court’s Order rejecting the OSHA Rule mean for employers?

Vaccine PassportAt the start of summer, Governor Ron DeSantis declared that Florida is “no longer in a state of emergency.” This statement preceded a bill banning vaccine passports, and two executive orders suspending local government COVID-19 restrictions.

For employers, this doesn’t mean you should rush to discard your face marks requirement, nor should it impact your decision to mandate vaccines. Employers remain free to implement safety features they feel needed.

New York vs. Florida

Many Northeastern states have begun experimenting with COVID passports. For instance, New York City now requires at least one dose of a COVID-19 vaccine for entry to indoor dining, gyms, and entertainment performances. For better or worse, Florida has gone in the opposite direction. Florida law now prohibits businesses from implementing these measures with respect to customers. Specifically, the new law says that “business entities,” including for-profit and not-for-profit entities, cannot require that patrons or customers provide documentation certifying that they received the COVID-19 vaccine or certifying that they have recovered from the virus to enter or receive a service from the business.

EEOC’s View

Continue Reading What Florida employers need to know about the vaccine passport ban

Waitress in a maskIn keeping with his candidate promises, President Biden’s new appointees issued new COVID-19 regulations. Under the prior administration, the EEOC concluded an employer could require an employee to be vaccinated as a condition of employment. While subject to certain limitations, such as accommodations for medical conditions and religious objections, this was a significant win for employers as they tried to return to normalcy.

Lack of consistency among government agencies

The EEOC’s pronouncement was seen as giving employers the approval to encourage vaccination. BJ Zarvis of Pewter Mug restaurant, “I saw this information as a way to give me, my employees, and my customers some comfort knowing that they were coming to a safe place.”

But then OSHA, under the new Biden administration, announced that any employer that created a mandatory vaccination plan would be subject to OSHA reporting rules if there were any adverse effects from the vaccination. Any lost days would be reportable, which potentially subjects the employer to higher insurance rates and fines. “When I heard about OSHA’s position,” said Zarvis, “I decided it wasn’t worth it to make it mandatory.”

Luckily, OSHA’s position took considerable heat from the public, across the political spectrum, such that it finally announced it was rolling back its position and not making adverse effects from a mandatory vaccination program reportable. So employers like Zarvis can again consider the pros and cons of making vaccinations mandatory.

What is keeping employers from mandating vaccinations?

Continue Reading How are Florida employers keeping up with ever-changing vaccine requirements?

Wine GlassesOn May 13, 2021, Florida Governor Ron DeSantis signed into law Senate Bill 148, which allows restaurants or other alcohol beverage vendors to sell alcoholic drinks to-go.  No, this does not mean that Florida is an open container state; possession of an open alcoholic container in Florida is still illegal under Florida Statutes, section 316.1936 and 856.011. However, customers who want to order take-out from their favorite restaurant can now also bring home their favorite cocktail, providing the restaurant meets certain requirements.

The alcoholic drinks to-go initially started through one of DeSantis’s emergency orders as a way for struggling restaurants during the COVID-19 pandemic to increase their sales. “Alcoholic drinks to-go became an important source of revenue for restaurants that were trying to survive during the pandemic,” DeSantis noted. Throughout the pandemic, restaurants were some of Florida’s businesses that were most affected. Florida Representative Josie Tomkow stated, however, that the new law

allows for restaurants to continue to offer alcohol-to-go as an option. This pro-consumer, business-friendly bill will help support our restaurant industry and its tens of thousands of employees.”

Requirements

Continue Reading I’ll Take it To-Go: New Florida Law Makes To-Go Alcohol Sales Permanent Effective July 1

COVID-19 vaccineOn June 12, 2021, a federal judge entered an Order dismissing a hospital employee’s lawsuit attempting to block a hospital policy requiring employees to receive a COVID-19 vaccine. Houston Methodist Hospital announced a policy on April 1, 2021, mandating that all employees receive one of the COVID-19 vaccines. The hospital eventually suspended 178 employees without pay for their refusal to get vaccinated. Jessica Bridges, along with 116 other hospital employees, brought suit to block the vaccine requirement and to overturn their suspensions and possible terminations.

At the beginning of 2021, there was much speculation throughout the country regarding whether or not employers could require employees to receive a COVID-19 vaccine. In a previous article, Can Employers Require Employees to Receive the COVID-19 Vaccine?, I indicated that the answer appeared to be yes, with some exceptions. Now U.S. District Judge Lynn N. Hughes appears to have confirmed this through his dismissal of Bridge’s lawsuit.

Plaintiff’s argument opposing COVID-19 vaccine

Continue Reading Federal judge upholds employer’s COVID-19 vaccine requirement

COVID-19 VaccineWith three coronavirus vaccines approved for use in the United States, an end to the pandemic appears in sight. But returning to normal comes with plenty of unknowns. For employers looking to reduce (or eliminate) virtual working, several pertinent questions are now surfacing.

Can I ask employees if they have been vaccinated?

The law generally prohibits employers from probing into an employee’s medical history. It is acceptable for a supervisor to ask if an employee is feeling OK or can complete work for the day. However, it is another story when an employer starts asking questions to determine if an employee is pregnant, diabetic, or suffering from some illness. The Americans with Disabilities Act (ADA) prohibits employers from forcing an employee to disclose disabilities or serious medical conditions.

Thankfully, the Equal Employment Opportunity Commission (EEOC) has removed any uncertainty about how the ADA applies in this context. According to recent guidance from the EEOC, employers are permitted to ask employees if they have been vaccinated and for documentation of the vaccine. Employers should, however, avoid health inquiries that probe into other areas not related to the vaccine, as this could run afoul of other employment laws relating to discrimination and disability.

Can I offer incentives for my employees to be vaccinated?

Continue Reading Coming Back to Work – Common Coronavirus Questions by Employers

Governor Ron Desantis issued an executive order prohibiting COVID-19 “vaccine passports” in Florida. The order prevents government entities from issuing “vaccine passports” or other standardized documentation for the purpose of certifying an individual’s COVID-19 vaccine status to a third party.

How does this order impact Florida business owners?

Further, this order prohibits businesses in Florida from requiring patrons to provide documentation certifying that the individual had a COVID-19 vaccination. Businesses still, however, can employ COVID-19 screening protocols and measures, such as requiring the use of a mask.Continue Reading No COVID-19 “Vaccine Passports” for Florida

The Florida House of Representatives passed S.B. 72 in a decisive 83-31 vote, a bill that would give businesses and health care providers a legal safe harbor from COVID-19 injury and wrongful death lawsuits. Governor Ron DeSantis signed the bill into law this afternoon. The law retroactively applies to causes of actions that have accrued but does not apply in a civil action which is commenced before the effective date of the law (March 29).

The new law provides civil immunity to corporations, nursing homes, hospitals, schools, and houses of worship. The exception to the law would be a showing of gross negligence or intentional misconduct, both of which are very difficult standards to prove. The bill had its opponents, of course, namely, the plaintiff bar, as it creates significant legal hurdles for plaintiffs who wish to file lawsuits over coronavirus-related injuries.Continue Reading COVID-19 Legal Safe Harbor Signed into Florida Law