Policy Matters Newsletter - August 13, 2021

One Small Step For Infrastructure: Senate Passes Bipartisan Package, But The Next Leaps Will Be Laborious. Finally, after months of inter- and intra-party wrangling, the Senate voted 69-30 — including a notable aye vote from minority leader Mitch McConnell who noted that infrastructure is also popular with GOP voters — Tuesday to approve a $1 trillion bipartisan infrastructure bill. The measure, negotiated primarily by Sens. Kyrsten Sinema (D-Ariz.) and Rob Portman (R-Ohio), includes roughly $550 billion in new funding for investments in roads, bridges, broadband, water and rail. The rest of the appropriations come from left over COVID-19 relief money and other sources. If the bill gets to the President’s desk, it would provide the following appropriations: $73 billion for electric grid and power infrastructure; $66 billion for passenger and freight rail; $65 billion for broadband investments; $55 billion for water systems and infrastructure; $50 billion for Western water storage; $39 billion for public transit; $25 billion for airports;  $21 billion for environmental remediation projects; $17 billion for ports and waterways; $15 billion for electric vehicles; and $11 billion for road safety.

That the Senate, in today’s starkly divided political society, was able to pass a bipartisan, historic, and costly piece of legislation, merits applause. But the applause should be brief, as there is a lot of work left to be done. While democrats plan to use the budget reconciliation process to avoid a filibuster on the remainder of Biden's broader spending plan on human infrastructure,  House Speaker Nancy Pelosi (D-Calif)  has adamantly and consistently said she will not take up the bipartisan measure until the broader budget bill has also passed the Senate. Immediately following the infrastructure vote, the Senate voted 50-49 to begin debate on a $3.5 trillion budget resolution, which prompted the so-called vote-a-rama that resulted in the Senate approving the measure shortly before 4:00 a.m. on Wednesday, strictly along party lines. The House will return early from its scheduled summer recess the week of August 23 to take up the budget.  Committees in both chambers will be busy hashing out the details of the proposed budget that could result in the biggest expansion of social programs since then President Johnson’s Great Society. Stay tuned — we here at the PMN will be publishing a feature on the various aspects of Joe Biden’s plans once the clouds part. Stay tuned.

Masks Are Back: Philadelphia Among First To Reinstitute Masks For Indoor Businesses. The City of Philadelphia was among the first localities to reinstitute a mask requirement for indoor businesses, as Seyfarth has reported. The District of Columbia has also issued an indoor mask mandate, and San Francisco is requiring proof of COVID-19 vaccination for gyms and bars. Additionally, New York City has announced that it will require proof of at least one vaccine shot for indoor dining and other indoor activities. Other cities and municipalities are expected to follow suit, as cases increase due to the rapidly spreading Delta variant of the COVID-19 virus. In addition, President Biden has announced a requirement that federal workers and contractors provide a vaccine attestation or wear masks and test multiple times per week. We here at the PMN will be putting out a Policy Matters podcast on this issue in the imminent future, so please keep an eye out for that!

Administration Seeks To Combat Climate Change Without Congress. As Seyfarth noted here, earlier this month, President Biden issued an “Executive Order on Strengthening American Leadership in Clean Cars and Trucks,” that sets “a goal that 50 percent of all new passenger cars and light trucks sold in 2030 be zero-emission vehicles, including battery electric, plug-in hybrid electric, or fuel cell electric vehicles.” While the order itself does not have the sharpest of teeth—the 50% goal is not mandatory and does not purport to preempt any state-mandated targets, such as California’s even more stringent standard—it does direct a number of federal agencies to engage in regulatory rule making that would establish regulatory prohibitions that would go to accomplishing this goal. For example, the EO directs the Department of Transportation to work on a rulemaking under the Energy Independence and Security Act of 2007 to establish new fuel economy standards for passenger vehicles beginning with model year 2027. As we noted in our podcast on the issue, achieving this ambitious goal will require significant infrastructure investment to promote consumer acceptance of electrical vehicles.

Collateral Damage: Could Long-Haul COVID-19 Qualify As A Disability Under the ADA? As Seyfarth has reported, late last month, the Department of Health and Human Services and the Department of Justice jointly published “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.”  In short, the Departments take the position that long-haul COVID can qualify as a disability as defined under the cited statutes. The Centers for Disease Control (“CDC”) defines long COVID as a “wide range of new, returning, or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19.” To qualify for protections under the relevant statutes, an individual must be living with “a physical or mental impairment that substantially limits one or more of the[ir] major life activities,” must have “a record of such an impairment,” or must be “regarded as having such an impairment.” HHS explains that “[e]ven if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.” The HHS guidance does not provide practical guidance on potential accommodations for long-haul COVID patients, unfortunately, but more guidance is likely to be issued. Neither the EEOC nor the Department of Labor have issued comparable guidance to date, so it remains to be seen whether and how the federal government will implement this focus in the employment context.

Right To Recall Is All The Rage. The pandemic wrecked economic havoc on a number of industries—the hospitality industry in particular. Last October, hospitality employers in California breathed a big sigh of relief after the Governor vetoed AB 3216—which would have required hospitality employers to offer employees who were laid off due to a state of emergency job positions that become available—noting that the  “requirements of this bill place too onerous a burden on employers” and found that “[t]ying the bill’s provisions to a state of emergency” was problematic. As Seyfarth noted here and we noted here, Governor Newsom reversed course in April of this year, signing SB 93, which is substantively the same as its vetoed predecessor, AB 3216. As is often the case, California led the policy way, as numerous other states are now pressing similar legislation. Connecticut and Nevada followed with laws that took effect in July, just as the delta variant catalyzed a dangerous resurgence of COVID-19 infections and hospitalizations. For more information on whether such laws are applicable in your jurisdiction, contact your favorite Seyfarth counsel.

Senate HELP Committee Passes Pregnant Workers Fairness Act But Deadlocks on Wage & Hour Chief Nominee Weil’s Nomination.  The Senate Health, Education, Labor & Pensions Committee recently passed the Pregnant Workers Fairness Act by a rare bipartisan 9-2 vote. The bill has received favorable votes in the House twice since being introduced in 2012, but it has never been voted on in the Senate. The law would go further than existing federal laws that merely classify pregnancy as a disability and only require pregnant women to be granted the same accommodations as injured or disabled employees. While bipartisanship prevailed when it came to the Pregnant Workers Fairness Act, partisanship took the helm when the HELP Committee deadlocked on President Biden’s nomination of David Weil for Department of Labor Wage & Hour Administration. Because of the 11-11 vote, Majority Leader Chuck Schumer will need to hold a procedural vote of the full Senate to advance the nomination out of committee. Weil’s nomination is concerning to Senate Republicans because, among other things, he has been outspoken about treating gig economy workers and rideshare drivers in particular as employees rather than independent contractors. Check out the most recent episode of the Policy Matters Podcast for more insight on Mr. Weil’s nomination.

Vaccine Mandate Clears SCOTUS. While this space is typically reserved for legislative or regulatory policy, when SCOTUS hands down a decision that affects the employer community, we feel it is relevant to this space. Indeed, as we observed here, SCOTUS decisions often result in reactionary legislative activity. SCOTUS’ decision yesterday to deny an emergency appeal a federal appeals court decision upholding the University of Indiana’s vaccine mandate—authored by the famous Judge Frank Easterbrook of the 7th Circuit Court of Appeals—is one of those relevant SCOTUS decisions.  In his opinion, Judge Easterbrook noted that those who don’t want to be vaccinated “may go elsewhere” and the challengers “have ample educational opportunities.” The emergency appeal of Judge Easterbrook’s opinion was denied by none other than the newest SCOTUS member, Justice Amy Coney Barrett. The case marked the first time the nation’s highest court has acted on a COVID-19 vaccine mandate, and provides additional legal backing to employers who wish to institute such a mandate. Before doing so, however, please contact your favorite Seyfarth counsel for guidance on the specifics.