Employment Law Updates: January 2022

Employment Law Updates: January 2022

Five Federal and eighteen State Law Updates have been issued this month.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

Federal Labor Law Updates:

1

2021 EEO-1 Component 1 Data Collection Tentatively Opens on April 12, 2022

The 2021 EEO-1 Component 1 data collection is tentatively scheduled to open on Tuesday, April 12th, 2022. The tentative deadline to file the 2021 EEO-1 Component 1 Report
is Tuesday, May 17th, 2022. Updates regarding the 2021 EEO-1 Component 1 data collection will be posted on this website as they become available.

Additionally, the Equal Employment Opportunity Commission (EEOC) is discontinuing the EEO-1 Component 1 Type 6 Establishment List Report for reporting establishments with fewer than 50 employees. Beginning with the 2021 EEO-1 Component 1 data collection, all filers reporting data for establishments with fewer than 50 employees must use a Type 8 Establishment Report to submit their data.

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2

COVID and ADA

The Justice Department updated its Common Questions About COVID and the ADA to address the following COVID-era issues affecting people with disabilities:

Medical facilities’ visitor policies must account for the rights of people with disabilities to receive equal access to care; and outdoor retail or dining spaces (sometimes called “streateries”) must be accessible to people with disabilities and not prevent their use of sidewalks and accessible parking.

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3

COVID-19 FAQs and Mandatory Coverage for Free OTC At-Home Tests by January 15, 2022

On January 10, 2022, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) posted its FAQs regarding implementation of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and the Affordable Care Act. These FAQs were prepared jointly by the Departments of Labor, Health and Human Services, and the Treasury and—like previously issued FAQs here and here—answer questions about the laws and legal compliance.

Importantly, the new FAQs discuss the Biden-Harris administration’s requirement that insurance companies and group health plans cover the cost of over-the-counter (OTC), at- home COVID-19 tests, so people with private health coverage can get them for free starting January 15th. According to the Centers for Medicare and Medicaid Services, this new coverage requirement means that most consumers with private health coverage can go online or to a pharmacy or store, buy a test, and either get it paid for up front by their health plan, or get reimbursed for the cost by submitting a claim to their plan. This requirement incentivizes insurers to cover these costs up front and ensures individuals do not need an order from their health care provider to access these tests for free.

Beginning January 15, 2022, individuals with private health insurance coverage or covered by a group health plan who purchase an over-the-counter COVID-19 diagnostic test authorized, cleared, or approved by the U.S. Food and Drug Administration (FDA) will be able to have those test costs covered by their plan or insurance. Insurance companies and health plans are required to cover eight free over-the-counter at-home tests per covered individual per month. That means a family of four, all on the same plan, would be able to get up to 32 of these tests covered by their health plan per month. There is no limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment, including for those who may need them due to underlying medical conditions.

Over-the-counter test purchases will be covered in the commercial market without the need for a health care provider’s order or individualized clinical assessment, and without any cost-sharing requirements such as deductibles, co-payments or coinsurance, prior authorization, or other medical management requirements.

As part of the requirement, the Administration is incentivizing insurers and group health plans to set up programs that allow people to get the over-the-counter tests directly through preferred pharmacies, retailers or other entities with no out-of-pocket
costs. Insurers and plans would cover the costs upfront, eliminating the need for consumers to submit a claim for reimbursement. When plans and insurers make tests available for upfront coverage through preferred pharmacies or retailers, they are still required to reimburse tests purchased by consumers outside of that network, at a rate of up to $12 per individual test (or the cost of the test, if less than $12). For example, if an individual has a plan that offers direct coverage through their preferred pharmacy but that individual instead purchases tests through an online retailer, the plan is still required to reimburse them up to $12 per individual test. Consumers can find out more information from their plan about how their plan or insurer will cover over-the-counter tests.

State Medicaid and Children’s Health Insurance Program (CHIP) programs are currently required to cover FDA-authorized at-home COVID-19 tests without cost-sharing. In 2021, the Biden-Harris Administration issued guidance explaining that State Medicaid and Children’s Health Insurance Program (CHIP) programs must cover all types of FDA- authorized COVID-19 tests without cost sharing under CMS’s interpretation of the American Rescue Plan Act of 2019 (ARP). Medicare pays for COVID-19 diagnostic tests performed by a laboratory, such as PCR and antigen tests, with no beneficiary cost sharing when the test is ordered by a physician, non-physician practitioner, pharmacist, or other authorized health care professional.

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4

Supreme Court Halts OSHA ETS

The United States Supreme Court has halted the OSHA vaccine-or-test Emergency Temporary Standard (ETS). As a result, covered employers (those with 100 or more employees) are not currently required to comply with the ETS.

Employers should continue to comply with all other federal, state, and local requirements— this ruling only affects the OSHA ETS. If you’re in a state with an OSHA State Plan,
you should continue to keep an eye out for state OSHA requirements.

The Supreme Court ruling was limited to whether the stay should be put back in place. The case now returns to the Sixth Circuit Court of Appeals to determine whether the ETS is beyond OSHA’s authority. Based on the reasoning of the Supreme Court, which indicated that OSHA had overstepped its bounds by regulating public health generally rather

than just occupational health, it seems unlikely that the ETS will be revived. This post has been changed since its original publication.

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5

Processing Vaccination Accommodation Requests under the ADA

On January 14, 2022, the Job Accommodation Network published Processing Vaccination Accommodation Requests under the Americans with Disabilities Act outlining a sample process for employers to determine whether they must grant a vaccination exception or delay as a reasonable accommodation under the ADA when employees are subject to a federal or state-imposed vaccination mandate or an employer policy. When an employee requests an accommodation and the disability and need for the accommodation are not obvious or already documented, the employer can require reasonable medical documentation. There is no required ADA medical documentation request form, but the Safer Federal Workforce provides a template for federal employers that can be modified by other employers as needed.

Is the employee unable to be vaccinated for COVID-19 because of a disability?

No: Deny the request under the ADA, apply other laws if appropriate, or follow usual policies.
Yes: Can the employee safely work while unvaccinated in the current job and work environment?

Yes: Allow the vaccination exception or delay.
No: Can accommodations be provided to eliminate or reduce exposure risk to an acceptable level, absent undue hardship?

Yes: Grant the vaccination exception or delay and provide the accommodations.
No: Deny the request under the ADA, apply other laws if appropriate, or follow usual policies.

More information is located at FAQ: COVID-19 Vaccination and the Americans with Disabilities Act.

State Specific Labor Law Updates:

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Employment Law Updates: December 2021

Employment Law Updates: December 2021

Four Federal, one District of Columbia, and fourteen State Law Updates have been issued this month.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

Federal Labor Law Updates:

1

Federal Contractor Minimum Wage and Final Tip Rules: Compliance Reminder

Minimum Wage

Beginning January 30, 2022, the minimum wage for work performed on or in connection with covered federal contracts will increase to $15.00 per hour. The minimum base wage for covered tipped employees will be $10.50 per hour.

A helpful FAQ can be found here.

80/20 Tip Credit Rule Restored

The Department of Labor’s (DOL) tip rule has been in limbo for the last year, but as of December 28, 2021, a new rule will be in effect. In the rule, the DOL makes it clear that an employer may only take a tip credit when its tipped employees perform work that is part of the employee’s tipped occupation. Work that is part of the tipped occupation includes work that produces tips as well as work that directly supports tip-producing work, provided that the directly supporting work is not performed for a substantial amount of time.

The DOL gives some useful examples of work that would be considered part of the employee’s tipped occupation and work that would not be considered part of their tipped occupation.

  • A server providing table service, such as taking orders, making recommendations, and serving food and drink — YES. That server preparing food, including salads, and cleaning the kitchen or bathrooms — NO.
  • A bartender making and serving drinks, talking to customers at the bar and, if the bar includes food service, serving food to customers — YES. That bartender cleaning the dining room or bathroom — NO.
  • A nail technician performing manicures and pedicures and assisting the patron to select the type of service — YES. That nail tech ordering supplies for the salon — NO.
  • A busser assisting servers with their tip-producing work for customers, such as table service, including filling water glasses, clearing dishes from tables, fetching and delivering items to and from tables, and bussing tables, including changing linens and setting tables — YES. That busser cleaning the kitchen or bathrooms — NO.
  • A parking attendant parking and retrieving cars and moving cars to retrieve a car at the request of customer — YES. That parking attendant servicing vehicles — NO.
  • A hotel housekeeper cleaning hotel rooms — YES. That housekeeper cleaning non- residential parts of a hotel, such as the exercise room, restaurant, and meeting rooms — NO.
  • A hotel bellhop assisting customers with their luggage — YES. That bellhop retrieving room service trays from guest rooms — NO.

 

In addition to work that produces tips (like the YES examples above), employees often perform work that is directly supporting their tip-producing work. For example, a server’s directly supporting work includes dining room prep, such as refilling salt and pepper shakers and ketchup bottles, rolling silverware, folding napkins, sweeping or vacuuming under tables in the dining area, and setting and bussing tables. Employers can take a tip credit when employee are doing directly supporting work up to a limit — once an employee spends a substantial amount of time on directly supporting work, the DOL considers them to be no longer engaged in their tipped occupation.

A substantial amount of time is defined as more than either 20% of the employee’s hours worked in a workweek while the employer is taking a tip credit or 30 continuous minutes. Once an employee has done directly supporting work for a substantial amount of time, the employer must stop taking a tip credit until the employee resumes clearly tip-producing activities.

Work that does not directly support their tip-producing work (such as the “NO” examples above) must always be paid without a tip credit.

You can read the rule and a lengthy explanation of how the DOL arrived where it did here. To find examples of how to calculate the amount of time that can be spent on directly supporting work while still applying a tip credit, search the linked document (the rule) for “5 hours.”

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2

Federal: EEOC Guidance on COVID-19, Americans with Disabilities Act (ADA), and Disability

The Equal Employment Opportunity Commission updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance by adding Section N that addresses:

  • How the ADA defines disability and how the definition applies to COVID-19.
  • When COVID-19 is an actual disability under the ADA and that it isn’t always an actual disability.
  • Examples of way that an individual with COVID-19 might or might not be substantially limited in a major life activity.
  • Depending on the facts, a person who has or had COVID-19 can be an individual with a record of a disability.
  • A person can be regarded as an individual with a disability if they have COVID-19 or their employer mistakenly believes they have COVID-19.
  • Examples of an employer regarding a person with COVID-19 as an individual with a disability.
  • An employer has not automatically discriminated against a person by regarding them as having a disability, for example the employer took an adverse action against the person because they have COVID-19 that is not both transitory and minor, for purposes of the ADA. It’s possible that an employer may not have engaged in unlawful discrimination under the ADA even if it took an adverse action based on an impairment. For example, an individual still needs to be qualified for the job held or desired.
  • A condition caused or worsened by COVID-19 can be a disability under the ADA.
  • An individual must establish coverage under a particular definition of disability to be eligible for a reasonable accommodation.
  • Employers can request supporting medical documentation before granting an employee’s request for a reasonable accommodation related to COVID-19.
  • Employers may voluntarily provide accommodations requested by an applicant or employee due to COVID-19, even if not required to do so under the ADA.
  • Employers that subjected an applicant or employee to an adverse action, and the applicant or employee is covered under any one of the three ADA definitions of disability, haven’t automatically violated the ADA because having a disability, alone, does not mean an individual was subjected to an unlawful employment action under the ADA.
  • ADA protections do apply to applicants or employees who do not meet an ADA definition of disability because the ADA’s requirements about disability-related inquiries and medical exams, medical confidentiality, retaliation, and interference apply to all applicants and employees, regardless of whether they have an ADA disability.


(Updated December 14, 2021)

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3

Federal: Extension of Form I-9 Flexibility Into 2022

The U.S. Immigration and Customs Enforcement (ICE) extended the Form I-9 compliance flexibility until April 30, 2022 due to necessary COVID-19 precautions. This extension continues to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements for the Employment Eligibility Verification (Form I-9) until the earlier of:

Their working non-remotely on a regular, consistent, or predictable basis; or The extension ends.

On March 20, 2020, the Department of Homeland Security announced its deferral of the physical presence requirements for the Form I-9 to protect employees and employers from COVID-19. However, this policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for the form.

(ICE announcement December 15, 2021)

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4

Federal: OSHA Vaccine-or-Test Mandate is Back with New Deadlines

The Sixth Circuit Court of Appeals has lifted the stay on the OSHA vaccine-or-test mandate (the Emergency Temporary Standard, or ETS), which applies to employers with 100 or more employees. This decision is already being appealed, and the ETS could be put on hold once again. We’ll let you know if that happens.

Lifting of the stay means that the ETS is in immediate effect nationwide and employers should begin to comply. The first compliance deadline was December 6 (for policies, notices, masking, vaccination status, etc.), and employers were supposed to begin testing unvaccinated employees by January 4. However, OSHA recognizes that compliance in such a short time frame is not feasible for many employers, so has said the following about enforcement:

“To provide employers with sufficient time to come into compliance, OSHA 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.”

We encourage you to review the materials that have been released by OSHA to help you understand your compliance obligations. Keep in mind that they likely haven’t updated the deadlines in the materials yet.

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State Specific Labor Law Updates:

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Employment Law Updates: November 2021

Employment Law Updates: November 2021

Three Federal, one District of Columbia, and ten State Law Updates have been issued this month.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

Federal Labor Law Updates:

1

2022 Increase to Federal Contractor Minimum Wage

Effective January 30, 2022, the U.S. Department of Labor’s final rule, in conjunction with Executive Order 14026:
  • Increases the hourly minimum wage for certain federal contractors to $15 beginning January 30, 2022, with future inflation-based increases.
  • Eliminates the tipped minimum wage for federal contractors by 2024.
  • Ensures a $15 minimum wage for workers with disabilities performing work on or in connection with covered contracts.
  • Restores minimum wage protections to outfitters and guides operating on federal lands.

(Announced by DOL on November 22, 2021)

2

EEOC Addresses Employer Retaliation in its COVID-19 “What You Should Know”

On November 17, 2021, the Equal Employment Opportunity Commission (EEOC) updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“What You Should Know”) to include more about employer retaliation in pandemic-related employment situations.

The updates clarify the rights of employees and applicants who think they were retaliated against because of protected activities under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, or other employment discrimination laws, in relation to employer- mandated COVID-19 health and safety protocols. Key updates include:

  • Applicants and current and former employees are protected from employer retaliation when they assert their rights under any of the EEOC-enforced anti-discrimination laws.
  • Protected activity can take many forms, including:
    – Filing a discrimination charge;
    – Complaining to a supervisor about coworker harassment; or
    – Requesting accommodation of a disability or a religious belief, practice, or observance, regardless of whether it’s granted or denied.
  • That the ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.

The updates also support the EEOC’s participation in an interagency initiative—launched on the same day as these updates—to end retaliation against workers who exercise their protected labor and employment law rights. Other participants in the initiative include the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB). The EEOC, DOL, and NLRB will collaborate to protect workers against unlawful retaliatory conduct, educate the public, and engage with employers, business organizations, labor organizations, and civil rights groups in the coming year.

Of note, the EEOC has updated its “What You Should Know” approximately 20 times throughout the pandemic.

3

OSHA Will Not Enforce Vaccination ETS Pending Further Litigation

According to the Occupational Safety and Health Administration (OSHA) website:

“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (ETS). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

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State Specific Labor Law Updates:

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Employment Law Updates: October 2021

Employment Law Updates: October 2021

One Federal and 14 State Law Updates have been issued this month.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

Federal Law Update

EEOC Updates to COVID-19 Vaccination Guidance

On October 13, 2021, the Equal Employment Opportunity Commission updated its guidance about:

  1. COVID-19 Vaccinations: EEO Overview (K.1 and K.3)
  2. The ADA and COVID-19 Vaccinations (K.4 and K.9)
  3. Title VII and COVID-19 Vaccinations (K.13)
  4. GINA and COVID-19 Vaccinations (K.15)
  5. Employer Incentives for COVID-19 Voluntary Vaccinations Under ADA and GINA (K.16, K.17, and K.18)

Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: February 2021

State-Specific Labor Law Updates

Seven State Law Updates have been issued. Our HR Advisors are versed and ready to answer your toughest HR questions.

February 2021 Law Alert Map

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Employment Law Updates: November 2020

Federal Law Updates: November 2020

Three Federal along with D.C and fourteen State Law Updates have been issued.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

November 2020 State Law Alerts

Labor Law Updates for November 2020

1

Federal Contractor Minimum Wage Rate for 2021

Increase in minimum wage rates effective January 1, 2021.

Effective January 1, 2021, the applicable minimum wage rate for workers performing work on or in connection with federal contracts covered by Executive Order 13658 increases to $10.95 per hour. Additionally, the required minimum cash wage for tipped employees performing work on or in connection with covered contracts increases to $7.65 per hour.

2

Form I-9 Flexibility Extended to December 31, 2020

Annother extension to the flexibility rules for Form I-9 compliance.

On November 18, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced another extension to the Employment Eligibility Verification (Form I-9) flexibility rule, which was extended to December 31, 2020, because of COVID-19 and the need for precautions. This flexibility rule, applicable only to remote workplaces, defers the physical presence requirement for in-person verification of the Form I-9 identity and employment eligibility documentation. However, the flexibility rule does not apply if there are employees physically present at the workplace. If there are employees physically present, then an employer must verify their Form I-9 identity and employment eligibility documentation in-person.

On March 19, 2020, the DHS first announced that the physical presence requirements were deferred due to COVID-19. The DHS and ICE websites provide additional updates about when the extensions will end and when normal operations will resume.

3

DOL and New FLSA Opinion Letters

DOL announces new opinion letters addressing compliance related to FLSA.

On November 3, 2020, the U.S. Department of Labor (DOL) announced the following new opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA): 

  • FLSA2020-15: Addressing the compensability of time that employees spend attending voluntary training programs in certain situations.
  • FLSA2020-16: Addressing compensability of employee travel time in certain situations involving construction sites located away from the employer’s principal place of business.

An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances.

Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: October 2020

Federal Law Updates: October 2020

Five Federal along with eight State Law Updates have been issued.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

October 2020 Law Alerts 7 states

Labor Law Updates for October 2020

1

DOL Releases FFCRA Eligibility Tool

Tool to assist employers and employees on determining eligibility for certain types of leave.

In October 2020, the federal Department of Labor released a Families First Coronavirus Relief Act (FFCRA) eligibility webtool for employees to determine their eligibility for paid sick leave or paid expanded family and medical leave. The webtool will also assist employers in determining their obligations to provide paid sick leave or paid expanded family and medical leave. The employer webtool is still being developed.

2

COLA Increase for 2021

The Social Security Administration announced a cost-of-living adjustment.

On October 13, 2020, the Social Security Administration announced the following for January 2021:

  • The cost-of-living adjustment (COLA) will increase by 1.3 percent; and
  • The maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $142,800 from $137,700.

Read the full announcement on the Social Security Administration’s site.

3

FAQs for Executive Order 13950 – Federal Contractors Combating Race and Sex Stereotyping

U.S. Department of Labor issued the following FAQs for Executive Order 13950.

4

CDC Guidance for Flu Season and COVID-19

The CDC updated it’s “The Difference between the Flu and COVID-19 page.

On October 6, 2020, the Centers for Disease Control (CDC) updated it’s The Difference between the Flu and COVID-19 page and addresses the following:

  • Signs and symptoms;
  • How long symptoms appear after exposure and infection;
  • How long someone can spread the virus;
  • How it spreads;
  • People at high-risk for severe illness;
  • Complications;
  • Approved treatments; and
  • Vaccine.

On October 7, 2020, CDC also updated its Influenza (Flu) Resources page that contains the following materials for businesses and employers:

  • Flu clinic and flu prevention communication tools;
  • Education and flu prevention messages; and
  • Tools for essential workers.

5

IRS Extends Due Date for Health Coverage Forms Due Date and Other Relief

The Internal Revenue Service announced extensions on certain forms to be provided to individuals.

On October 2, 2020, the Internal Revenue Service announced (Notice 2020-76) that employers, insurers, and other providers of minimum essential coverage have until March 2, 2021 (instead of January 31, 2021) to provide the following 2020 forms to individuals:

  • Form 1095-B, Health Coverage; and
  • Form 1095-C, Employer-Provided Health Insurance Offer and Coverage, which is filed by Applicable Large Employers (ALEs).

The extension is automatic, no request required, but employers and other coverage providers are encouraged to furnish 2020 information statements as soon as they can. The notice does not extend the due date for filing the 2020 Forms 1094-B, 1095-B, 1094-C, or 1095-C with the IRS.

The notice also provides a final extension for ALEs from penalties under 26 U.S.C. §§ 6721 and 6722 for incorrect or incomplete information if they can prove their good-faith efforts to comply with Form 1095-C:

  • § 6721 imposes a penalty for the failure to file correct information returns; and
  • § 6722 imposes a penalty for the failure to furnish correct payee statements.

Individual state labor laws

State Specific Labor Law Updates:

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