Regulatory Roundup November 2021

The holidays have arrived, and with them came a feast of legislative updates. Easily the biggest news was the arrival and almost immediate suspension of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) regarding mandatory COVID-19 vaccination and testing for all employers with 100 or more employees. Along with this were multiple side dishes on Flexible Spending Account (FSA) limits from the Internal Revenue Service (IRS), Federal Unemployment Tax Act (FUTA) reduction states from the Department of Labor, and Employee Retention Credits (ERCs) from the Infrastructure Investment and Jobs Act. For dessert, the Colorado legislature also sweetened a few of its local wage laws for employees within the state. All these updates and more are ready for you to gobble down in this month’s Regulatory Roundup.

After weeks of anticipation, OSHA finally published its ETS mandating employers with 100 or more employees to create and enforce a COVID-19 vaccination and testing policy. The very next day on November 6th, the 5th U.S. Circuit Court of Appeals temporarily halted enforcement of the ETS pending resolution of state-filed petitions arguing against the ETS. The 6th U.S. Circuit Court of Appeals was later chosen to oversee and review the dozens of petitions filed across nearly all U.S. Circuit Courts. It remains unclear when the suspension will be lifted or what the new deadlines for the ETS will be.

Garnering almost as much attention in November was the passage of the Infrastructure Investment and Jobs Act, which included a provision to retroactively end eligibility for the Employee Retention Credits (ERCs) put in place at the height of 2020’s COVID-19 pandemic shutdown. Per this new law, previously eligible employers can no longer claim credits for wages paid after September 30, 2021. Only businesses designated as Recovery Startup Businesses (i.e., have $1 million or less in annual gross receipts and started operations after February 15, 2020) can continue to claim credits for wages paid on or before December 31, 2021.

Looking forward to next year, the IRS published Revenue Procedure 2021-45 detailing annual inflation adjustments for more than 60 tax provisions, including 2022 contribution limits for Health FSAs, Qualified Commuter and Transit Benefits, Qualified Small Employer Health Reimbursement Arrangements (QSEHRAs), and more. Limits for all plans addressed by the IRS are increasing for 2022, and employers are encouraged to review this content for this Open Enrollment season.

The U.S. Department of Labor also announced the final 2021 FUTA credit reductions last month, with the list only including the Virgin Islands. Per the announcement, employers in the Virgin Islands will pay a higher FUTA tax rate than employers in other American states and territories. The increased rates are due to a failure to repay outstanding federal Unemployment Insurance (UI) loans by the November 10, 2021 deadline.

Finally, the Colorado Department of Labor and Employment (CDLE) updated the state’s Wage Protection Rules and published final rules on the Colorado Overtime and Minimum Pay Standards Order #38 (COMPS38). The updates included clarifications on the rate at which paid sick leave should be paid out, requirements that employers pay out accrued and unused PTO or vacation hours, and options for determining the regular rate of pay for employees working multiple jobs with different hourly rates for the same employer.

Get more details on the compliance updates from November here:

• OSHA Emergency Employer COVID Vaccine Mandate
• 6th Circuit Court of Appeals Chosen to Decide OSHA ETS Cases
• Employee Retention Retroactively Expires September 30, 2021
• 2022 Health FSA and Other Limits Announced
• FUTA Credit Reduction States Released for 2021
• Colorado Legislative Updates

Check out Legislative Updates Related to Coronavirus (COVID-19) for a comprehensive summary of legislative changes and how Paylocity has responded with updates to our product to help you stay compliant. For the latest information and resources related to the coronavirus, check our COVID-19 Resources page often.

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This information is provided as a courtesy, may change, and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney, or Advisor.