Nineteen things employers can expect in 2022
Part 1 (1 -7)
While 2020 seemed like an anomaly at the time, the events of 2021 have shown us that drastic changes are still at work. Employers were constantly asked to do more as they were whiplashed with legislative and regulatory changes, grappled with labor shortages, and expanded their role in their employees' physical and mental well-being. Here are 19 things related to workers' compensation and risk management that employers can expect in 2022. Some are definite, others are our "best-guess."
The order of the following does not reflect importance and some may not be relevant to your workplace. Risk management is an ongoing process of identifying, analyzing, and controlling risks. As trained Certified WorkComp Advisors, we are skilled in managing the risks to the health and safety of your employees and are here to help.
- A partial resolution to the vaccine mandate saga
On December 22, 2021, the U.S. Supreme Court agreed to hear the challenges to both OSHA's COVID-19 vaccination and testing ETS mandate for larger employers and the Centers for Medicare & Medicaid Services (CMS) healthcare vaccine mandate, which does not have a testing option. The court heard oral arguments on Jan. 7 in the two cases, and rulings are expected to follow shortly. Although the challengers asked the Court to pause the rules while it considers the appeal, the Court refused to do so.
OSHA's vaccination and testing COVID-19 mandate is currently in effect nationwide after a surprise decision on Dec. 17, 2021, by the conservative Sixth Circuit Court of Appeals dissolved the temporary "stay" that was imposed earlier by the Fifth Circuit Court of Appeals. The healthcare vaccine mandate has gone through more decisions and is a bit complicated.
The mandate requires health care workers at facilities that treat federally funded Medicare and Medicaid patients to receive vaccines. After a Missouri judge blocked the rule in ten states, a Louisiana court blocked it from taking effect anywhere in the country. However, on December 15, 2021, the Fifth Circuit Court of Appeals reactivated the rule, but only in 25 states and Washington D.C.
Now the mandate can be enforced in California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.
Three different court rulings mean it cannot be enforced now in Alabama, Alaska, Arkansas, Arizona, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.
Employer takeaway:
CMS mandate
For those healthcare employers subject to the CMS vaccine mandate in the states and Washington, D.C. where it is enforceable, the CMS released guidance on December 28, 2021. According to the guidance, facilities are compliant if, by Jan. 27, they have established policies and procedures for ensuring that eligible staff is vaccinated, and all staff have received at least one dose, have a pending request for an exemption, have been granted a qualifying exemption, or have been identified as having a temporary delay as recommended by the CDC. By Feb. 28, eligible staff must have completed the vaccination series (one dose of Johnson & Johnson or two doses of Pfizer or Moderna), have been granted an exemption or have been identified as having a temporary delay as recommended by the CDC. Federal, state, accreditation organizations, and CMS-contracted surveyors will begin surveying for compliance 30 days after publication of the guidance.
Note: While the Supreme Court has not issued its ruling, many experts feel the court seems likely to sustain this requirement. That regulation is in keeping with other kinds of federal oversight and is supported by virtually the entire medical establishment, some justices noted.
OSHA ETS
For large employers subject to the federal OSHA ETS, the first compliance deadline is January 10. While OSHA notes on its website that it will exercise "enforcement discretion with respect to compliance dates of the ETS," it also indicates that it "will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard's testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance."
To show a good faith effort, covered employers must develop a written plan, train managers, provide paid leave for employees to get vaccinated, determine the vaccination status of all employees, decide if a testing option will be offered, communicate policies, including how to request a reasonable accommodation, and enforce the masking requirement for unvaccinated employees by January 9. For any employee that remains unvaccinated and employed by February 8 employers must follow the COVID testing mandate of the ETS.
Note: While the Supreme Court has not issued its ruling, many experts feel the questions asked by the conservative justices suggest this may be stayed. Conn Maciel Carey, a law firm focused on labor, employment, and OSHA notes, "It seemed that the conservative majority of the Court was leery of OSHA's legal authority to mandate a broad national requirement for workers to be vaccinated or to undergo frequent testing without a more clearly express delegation of that intended standard-setting authority than what Congress had provided in the fifty year-old and somewhat vague OSH Act of 1970. It's not a certainty that the OSHA vaccinate-or-test ETS will be stayed (and later killed), but there is very reasonable potential that is the outcome of the case now fully submitted to the nation's High Court."
Confirming whether covered by the ETS
Essentially, the ETS covers all private employers with a company-wide headcount of 100 or more employees (including full-time, part-time, and temporary) at any time during the ETS that are not covered by the federal contractor requirement or the CMS healthcare vaccination mandate. Employees who work 100% remotely or employees who work exclusively outdoors are excluded as are independent contractors and most leased employees.
This comes at a time when the vaccine mandate for federal contractors is stayed nationwide. The decision was issued by a single federal court judge in Georgia and does not invalidate Executive Order 14042, but rather enjoins enforcement of it. It is temporary as the case works its way through the judicial system. The ETS specifically excluded federal contractors, "because covered contractor employees are already covered by the protections in those guidelines." Thus, it's a murky situation for federal contractors and until clarified by the administration, it's best to consult legal counsel. Similarly, large healthcare employers could be now covered (see 3 below).
Although the Fed OSHA is helpful guidance for the employers in OSHA "state plan" states , organizations will need to wait for the states to act before knowing exactly how to comply. Fed OSHA has set January 24 as the deadline for these states to adopt the ETS or otherwise ensure that their state plans are "as effective" as the federal rule.
While the ETS supersedes any contrary state or local ordinance since the OSHA ETS allows testing, it can be complicated when there is a state vaccination ban, so it is prudent to consult counsel. Further, the ETS does not excuse noncompliance with state or local laws that require more stringent protective measures.
The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings against constitutional challenges, however, the new cases are different, focusing on whether the federal agencies have the power to mandate pandemic-related responses. In late summer 2021, it ended a CDC-imposed moratorium on evictions, noting it was beyond the agency's authority.
Whatever the outcome, employers will soon have a decisive answer about the enforceability of both rules.
OSHA policy templates and fact sheets
For a summary of the ETS and CMS mandate visit our Archives - Articles - November 2021
- Uncertainties around COVID-19 will continue to disrupt workplaces
The National Council on Compensation Insurance (NCCI), collaborating with various other agencies, recently published a summary report on the impact of COVID on workers comp. On a positive note, the costs of COVID claims are significantly lower than non-COVID claims and a large share are indemnity-only. However, the report cautions there are many uncertainties, particularly the potential effects of "Long-COVID" as well as more variants.
The emergence of the omicron variant has put employers on notice that they may need to beef up their safety protocols or change reopening plans as well as stay abreast of rapidly changing state and local rules and regulations. According to a recent Gartner survey, 44 percent of companies have pushed back or altered their reopening plans because of the omicron variant.
NCCI has a Medical Indicators & Trend dashboard that provides summarized statistics for several key metrics of the direct and indirect impacts of COVID-19, including impacts to physician services, time to treatment, telemedicine, prescription drugs, hospital outpatient and ambulatory surgical center visits, and COVID-19 treated claim characteristics.
Employer takeaway: Employees feel stressed by constantly changing return dates. The hard part for employers is coming to terms with the idea that this is no temporary phenomenon. Smart companies are deciding that setting firm deadlines that get kicked down the road does not make sense. They are defining conditions under which people will or will not come to work and how they will work when in the workplace. In addition, OSHA penalties for COVID-related violations topped $4 million as of Dec. 24, 2021. Expect that list to grow in 2022.
- Healthcare permanent standard and NPRM for an infectious disease standard covering all industry sectors
Under the OSH act, an ETS is effective until superseded by a permanent standard, which should be within six months of the ETS's promulgation. The Healthcare ETS became effective June 21, 2021, and was withdrawn on December 21, 2021. OSHA announced on December 27, that it is withdrawing the non-recordkeeping portions of the healthcare ETS, however will vigorously enforce its requirements under the General Duty Clause and the Personal Protective Equipment (PPE) and Respiratory Protection standards. OSHA's FAQs (2J) on the Vaccination and Testing ETS website note, "however, that if the Healthcare ETS is no longer in effect at any point while this ETS is in effect, some employees working in settings covered under section 1910.502 may become covered by this ETS."
At the same time, it announced it intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards and will issue a Notice of Proposed Rulemaking (NPRM) for an infectious disease standard covering all industry sectors in April 2022. The agency said the new standard will address airborne, droplet, and non-bloodborne contact diseases.
Employer takeaway: A formal infectious disease standard has been considered several times in the past, but never adopted. After the H1N1 pandemic, the Obama-Biden administration spent years developing a permanent standard, which would have required health facilities and certain other high exposure workplaces to establish a comprehensive infection control program and control measures to protect employees from exposures to infectious agents that can cause significant disease.The NPRM will include the terms of the new rule and provide a specific time (at least 30 days from the date of publication, usually 60 days or more) for the public to respond. Then OSHA will publish in the Federal Register the full, final text of any standard amended or adopted. However, it may also publish a determination that no standard or amendment needs to be issued.
- Presumption legislation will continue
Presumption laws expanded significantly during the pandemic and insurance executives are concerned that this may have opened a Pandora's Box that would stretch the presumption for infectious diseases beyond COVID with significant implications for workers comp coverage and costs. According to an NCCI Legislative report , nine states enacted COVID-19 presumptions in 2020 and twice as many bills and expansions were filed in 2021.
Employer takeaway: Many of the laws have expiration dates in 2022 and jurisdictions may be charting a new course of action if the pandemic becomes an endemic. This could mean the ending of presumptions for COVID or become a precedent for covering all essential workers and more infectious diseases beyond the pandemic. Further, lawmakers continue to feel pressure to expand presumptions for first responders, including cancer, post-traumatic stress disorder, and mental illness. It's important to stay up-to-speed with the latest news.
- Labor trends signal a need to reassess safety culture through the employees' lens
Fundamental shifts and deep divisions in the views on safety, health, and well-being have occurred at many workplaces. The pandemic changed the way people work or if they work at all. It also revealed hidden flaws in workplace safety plans and health protocols. The Great Resignation, an aging workforce, and the entrance of Gen Z have shaken up the dynamics of the workforce. Combined, these factors have a significant effect on a company's safety culture. Companies that resist change in the belief that things will "return to normal" fail to recognize that people have changed and can lose a competitive edge in recruitment and retention.
Employer takeaway: 2022 will require a concentrated effort on company culture to figure out what the post-pandemic world of work looks like. Although the deep divisions of personal beliefs will continue, workers can focus on the tasks at hand and rally around a shared purpose. In building a culture of safety, the top two challenges are engaging and motivating employees and balancing production pressures with safety efforts. Smart employers have moved away from the traditional top-down approaches to working collaboratively with employees. A climate in which employees feel safe enough to speak up about problems, raise questions, point out conditions, and confront behaviors ("psychological safety") has a great impact on safety culture. Bring together culture leaders from safety committees, unions, and senior management, be flexible, and be open to new ideas.
- New legislation or guidance and case law on remote workers
For many organizations, the biggest pandemic-related operational change was shifting to a remote work environment and in 2021 we have begun to see the lasting impacts of that shift. As employers continue to define the path forward, many have allowed their employees more flexibility to work remotely. McKinsey estimates that 20 to 25 percent of the workforce could work from home between three and five days a week without a loss of productivity, which represents four to five times more remote work than before the pandemic.
At several levels, this has implications for workers compensation. Employers need to keep track of where employers are living to be sure they are covered by the company's policy, understand federal and state leave laws, ensure workers have proper workspaces and equipment, understand existing case law around compensability for injuries, have a robust telework policy and agreement, and continually train employees on ergonomics. Other challenges include cybersecurity, managing substance abuse, particularly alcohol and marijuana, which some studies suggest can be common during the remote workday, and enhancing communication techniques to foster engagement.
Employer takeaway: Given other priorities, this phenomenon has gone under the radar screen for regulatory action but is ripe for some changes. OSHA's Directive on Home-Based Worksites is relatively hands-off, although it can rely on the General Duty clause to ensure home-based employees are working in safe and healthful home offices. Also, case law is limited but with growing numbers of remote workers, it is expected to increase. Thomas A. Robinson, J.D., co-author of Larson's Workers' Compensation Law warns to expect challenges to the Going and Coming Rule, which in most jurisdictions only applies when the employee has fixed hours and a fixed place of work. Thus, many injuries sustained while "traveling" to the employer's facility could be compensable.
- More requests for reasonable accommodations and more EEOC activity
Vaccine mandates, the desire to work remotely, and the fear of exposure to COVID-19 have opened the flood gates for a wave of exemption requests. Further, the regulatory landscape is fluid - more guidance from the EEOC and jurisdictions refusing to allow religious exemptions to mandates for vaccines, while others have required it. Disability and religious discrimination claims, particularly by employees seeking an exemption from vaccination policies, are expected to increase, as well as discrimination claims in general.
Interestingly, the Equal Employment Opportunity Commission (EEOC) did not submit a spring or fall agenda in 2021. However, the bi-partisan commission has a 3-2 Republican majority, which will change in mid-2022. Expect more action then.
Employer takeaway: Essentially, the EEOC requirements for considering requests have not changed. Each request must be considered individually and employers must engage in the interactive process with each employee and consider alternatives to keep them working. When denying, be prepared to identify the direct threat they pose to the workplace and to explain why in-person work is essential for the worker. If they worked from home during the pandemic, why was it not optimal? Be consistent and stay abreast of EEOC guidance. It's also a good practice to review your employment practices liability coverage.