Policy Matters Newsletter - December 17, 2021

Build Back…Sometime? Despite Senate Majority Leader Chuck Schumer’s repeated assurances that the Build Back Better Act (BBBA) would pass the Senate before the holidays, many Democratic Senators have now conceded that BBBA will bleed into the first few weeks of the New Year. The cause of the stall is of course multi-faceted and cannot be hoisted on one particular senator. But, as has been the story of 2021, Senator Joe Manchin (D WV) remains the biggest hurdle in passing the legislation, expressing frustration that the top-line dollar amount of the social spending measure is still too high, as well as objecting to certain environment provisions.  Sen. Manchin also has raised again the high inflation impacting the economy, while the administration insists that passing the measure would ease inflation.

While the majority of the democratic caucus has conceded that this legislation will not proceed in 2021, it is not as though those senators are sitting on their hands -- this week Senator Ron Wyden, chair of the Senate Finance Committee, released the tax portions of the Act. A couple of highlights: the proposal leaves out the House’s provision to expand the deduction on state and local taxes, known as SALT; reworked language would make relatively few modifications to the clean energy and electric vehicle provisions of the House-passed bill; extension of the child-tax credit; and about $1.5 trillion of tax increases on wealthy Americans and corporations. Notably, the draft is merely a placeholder version as the contours of the plan are being negotiated, and is certainly subject to change upon the so-called Byrd Bath.  Indeed, the Senate Parliamentarian already held that the immigration components of BBBA as passed by the House would not be appropriate to include in the reconciliation bill.

COVID-19 Can Be a Disability Under Anti-Bias Law.  Earlier this week, the EEOC issued supplemental guidance concerning COVID-19, confirming that it can qualify as a disability under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other equal employment opportunity laws. Under that guidance, COVID-19 can be an actual disability under the ADA if it causes a physical or mental impairment that substantially limits one or more major life activities. A history of COVID-19 may also qualify a person as one “with a record of” a disability under the ADA. The supplemental guidance advised that employers must always conduct an individualized assessment to determine whether the effects of COVID-19 substantially limit a major life activity, like breathing or interacting with others.  Employees whose COVID-19 symptoms are mild or non-existent would likely not qualify as disabled.  If an employer determines that an employees with COVID-19 is in fact disabled, it must provide a reasonable accommodation under the law until those employees are able to recover and no major life activities are substantially limited.

Federal Update For OSHA ETS, EO 14042, and CMS Regulation. As we noted here, the OSHA ETS, EO 14042, and the CMS Regulation, all of which mandate vaccination in their various purviews, have been halted by federal courts across the country.

• Sixth Circuit ETS Challenges: The legal challenges to OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) were consolidated before the U.S. Court of Appeals for the Sixth Circuit on November 16, 2021, and to date, the U.S. Court of Appeals for the Fifth Circuit’s ETS stay, issued on November 6 and extended on November 12, remains in place. Based on the directives in the Fifth Circuit’s opinion extending its initial stay, “OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”  The Sixth Circuit has proceeded deliberately in considering these matters, and no hearing has yet been scheduled.  The Sixth Circuit has denied petitions to have the matter heard initially by an en banc panel, and will instead proceed with its standard three-judge panel procedure. Whichever side wins before the Sixth Circuit, an appeal to the Supreme Court seems inevitable.
• Preliminary Injunctions of Executive Order 14042: On Tuesday, December 7, 2021, United States District Judge for the Southern District of Georgia R. Stan Baker enjoined the government “during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”  Seyfarth immediately published a legal update on the decision.  Judge Baker’s decision follows a November 30, 2021 U.S. District Court for the Eastern District of Kentucky order from Judge Van Tatenhove preliminarily enjoining the federal contractor COVID-19 vaccine mandate in Kentucky, Ohio, and Tennessee.  Our prior legal update provides an overview of the Kentucky decision. The government has appealed the Kentucky stay, and the Georgia District Court’s nationwide injunction as well.  Further, “[t]he Office of Management and Budget has issued guidance on implementing requirements of Executive Order 14042 while ensuring compliance with applicable court orders and injunctions,” which is posted on the Safer Federal Workforce Task Force’s website.
• CMS Regulations: On Monday, November 29, 2021, Missouri U.S. District Judge Matthew Schelp blocked the CMS vaccination mandate in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.  The next day, U.S. District Judge Terry A. Doughty in the Western District of Louisiana issued an additional preliminary injunction suspending the CMS regulation in the remaining 40 states.  The government has appealed both decisions, and those appeals will play out over the coming weeks and month. The Fifth Circuit has reduced the Louisiana injunction to the 14 States participating in that litigation.

Is the NLRB Going to Allow Micro-Units Again?  The NLRB recently issued a notice in a case called American Steel Construction that invited parties and amici to submit briefs regarding whether the NLRB should reconsider its standard for determining if a petitioned-for bargaining unit is appropriate. This is largely viewed as a signal that the Board intends to return to the Obama Administration-era standard articulated in its Specialty Healthcare decision, which held that a unit was appropriate if its members shared a community of interest unless it could be shown that employees outside the unit shared “an overwhelming community of interest” with the unit employees, “such that there is no legitimate basis upon which to exclude certain employees” from the unit. That standard was widely viewed by employers as a means for unions to gerrymander so-called “micro-units” in an effort to get in the door where widespread support for a union did not exist.  Indeed, the NLRB’s notice directly asks the question, “Should the Board return to the standard in Specialty Healthcare, . . .?”  Given the current composition of the Board, employers should anticipate that a decision will issued within the next year or so returning to the Specialty Healthcare standard, or something very similar to it.

NY Hero Act Gets Another COVID Extension. As Seyfarth has reported, New York State’s health commissioner designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health, thus requiring employers to activate their safety plans under the NY HERO Act. Given the continued transmission of COVID-19, the commissioner has once again extended the HERO ACT’s requirement for employers to implement various disease-prevention measures, including daily health screenings and masking for workplaces where all individuals on premises are not fully-vaccinated, among other requirements.

Senate Votes to Block Private Sector Mandate. The U.S. Senate recently voted to block President Biden’s mandate for COVID-19 vaccines or testing for all private sector employees.  Senators Joe Manchin and Jon Tester, both Democrats, joined all 50 Republican Senators to oppose the mandate, which has already been enjoined by the courts and is not being enforced.  Senator Manchin and Senate Majority Leader McConnell both say they support efforts to get workers vaccinated but believe that the mandate constitutes government overreach. The Senate vote was largely symbolic, though, as the fate of the vaccine mandate ultimately depends on what happens in the courts. We will continue to monitor the situation.

It Did Not Take The Parliamentarian: States Across The Country Bump Minimum Wage. A we noted here, back in March, the Senate Parliamentarian foiled Congressional Democrats attempt to bump the minimum wage in the American Rescue Plan. Even without a federal directive, many states across the Union are set to see the minimum wage within their borders increase starting 1/1/22. New York will see an increase to $15 an hour or most employers; across the Hudson, in New Jersey, the minimum wage will increase to $13 an hour for most employers. California’s minimum wage will increase to either $14 or $15 an hour, depending on the size of the employer. Outside of those big three, ten more states have scheduled incremental increases that will bring their minimum wages to $15 per hour within the next few years, including Connecticut and Massachusetts, New Jersey, Delaware, Illinois, Maryland, Rhode Island, Florida and Maryland. In all, about half of the states in the union will see a minimum wage increase on 1/1/22.

California Reinstates Indoor Mask Mandate. After California’s grand reopening back in June (little did we know, the 21 Century version of the roaring twenties would last about a month before the Delta variant shut that down), which we wrote about here, a lot has happened, including a landslide recall election victory for the incumbent Governor. Close in time to that victory, and as the Omicron variant spreads rapidly across the country, California has announced, as Seyfarth summarized here, a return of the indoor mask mandate, regardless of vaccination status. This requirement will last at least four weeks, through January 15, 2022, at which time the California Department of Public Health (CDPH) will reevaluate whether the mask mandate should be extended.

Massachusetts Supreme Court Aligns State Joint Employer Rule With Federal Standards.  As Seyfarth summarized here, the Massachusetts Supreme Judicial Court, in Jinks v. Credico (USA) LLC, held that, in order to determine who controls an employee – and is therefore a joint employer - the Court adopted the four-prong “totality of the circumstances” test applicable to joint employment claims under the federal Fair Labor Standards Act.  That test looks to “whether the alleged employer (1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.”

Keen For A Listen? Seyfarth Attorneys Discuss COVID-19 Exemption Request. In this podcast, three of our outstanding subject matter experts on medical accommodation requests, Kristin McGurn, joins co-hosts, Josh Seidman and Meg Toth, to discuss different types of medical accommodation requests employers are receiving from employees in response to COVID-19 vaccine mandates. This is a must listen for employers navigating complex policy choices for adopting a COVID-19 vaccine mandate.

I Am Sensing A Theme: ICE: I-9 Flexibilities Extended to April 30, 2022. As reports abound of COVID-19 variants circulating across the nation, many of the COVID-19 mitigation protocols that were loosened are now being reinstated or extended. As we noted here, one of those protocols making business operations easier during the pandemic has been ICE’s loosening of I-9 compliance procedures. As Seyfarth noted here, ICE has announced a 120-day extension to I-9 compliance flexibility rules relating to Form I-9 compliance that was initially granted in March of 2020.