Policy Matters Newsletter - March 16, 2021

What Timing: Biden Signed $1.9 Trillion Coronavirus Relief Package. We here at the PMN have been following intently every development when it comes to the federal government’s legislative response to the virus. Indeed, since the onset of the pandemic, some sort of stimulus commentary has appeared in almost every iteration of this newsletter. As we noted here, the most worrisome provision for employers — the drastic increase in the minimum wage — was ruled extraneous by the Senate Parliamentarian. In plain speak, this just means the Senate could not pass the minimum wage hike along with the COVID-19 bill through the process known as reconciliation, which is the only way Senate Democrats were able to get the bill through that chamber. Other concerning provisions like the elimination of the tip credit also fell out of the bill. Instead, the bill is actually pretty helpful for most employers: first and foremost, it appropriates billions to increase vaccine distribution to get shots in arms, which ultimately means a less sick work force. Indeed, this piece of legislation carries nothing like the hefty obligations or concerning provisions previously found in the FFCRA, or the CARES Act. This bill is instead much more focused on the individual and family unit. Without going in to too much detail, the measure will:

• Appropriate $350 Billion to Schools;
• Appropriate $14 Billion for vaccine distribution;
• Provide for payments / tax credits up to $3,600 per child;
• Appropriate $34 Billion in subsidies for the Affordable Care Act;
• Appropriate $350 Billion to state and local governments; and
• Provide for $1,400 direct payments for those qualify.

Employers were also rightfully concerned the measure would extend the FFCRA’s now extinguished obligation to provide mandatory paid leave for certain COVID-19-related reasons. Employers can rest easy that this obligation is not included in this Legislation; BUT, employers who voluntarily provide leave for the same COVID-19-related reason, in addition to some Vaccine-related reasons, will still be eligible for FFCRA tax credits. The bill also would appropriate additional funding for the paycheck protection program, with a focused effort on those in hard-hit industries like restaurants and bars. House and Senate leaders reached a deal last week to extend the Program’s loan application deadline to May 31. Another major change related to the unemployment benefits in the finalized version is a provision making the first $10,200 in unemployment payments received in 2020 non-taxable for households with incomes under $150,000. Finally, the “American Rescue Plan” also provides for long-awaited provisions designed to provide underfunded multiemployer pension plans with sufficient capital to pay for all accrued benefits owed to retirees—Seyfarth will be presenting a webinar on this topic on March 24, those interested can register here.

This latest piece of stimulus is historic in size and scope and will do much to alter the economic landscape in the United States. Employers may feel the effects of this economic alteration down the line, but we will have to wait to see how that plays out. For now, employers can hope that this measure should improve the economy and business climate overall. Though, as we noted here, employers should beware that The Fight for Fifteen apparently is not going away. Senator Sanders has made it clear that he will pursue this goal and even some Republican Senators such as Senator Romney and Senator Cotton are discussing an increase in the federal minimum wage to $10 or $11 per hour.

House Education And Labor Subcommittee to Hold Hearing On Important Employment Legislation. This Thursday at 10:15 a.m., the Civil Rights and Human Services Subcommittee on Workforce Protections Subcommittee will hold a hearing entitled: “Examining Legislation to Confront Workplace Discrimination.” During the hearing, the subcommittee will take testimony on the following pieces of legislation of import to employers:

• Paycheck Fairness Act,
• Protecting Older Workers Against Discrimination Act (POWADA)
• Pregnant Workers Fairness Act,
• Providing Urgent Maternal Protections Act (PUMP)

Our very own Camille Olson will testify at the hearing. It should be informative—this author will be chiming in!

Will Nancy Pelosi See Her Wish For A Federal ETS Come True? Before digging in, for a quick emergency temporary standard (“ETS”) refresher, take a listen to this wonderful podcast hosted by our very own Scott Hecker. Back in May, the House passed the HEROES Act, which we wrote about here, including a provision that would have required OSHA to issue an emergency temporary standard within days. That measure predictably died in the Senate. At the onset of his presidency, President Biden issued Executive Order 13999, directing OSHA to consider whether a COVID-19 ETS is necessary and, if so, to promulgate one by March 15. 

Yesterday was March 15, and OSHA has yet to promulgate an ETS. So what’s the deal? Well, there are conflicting reports: some rumblings indicate that OSHA may not issue an ETS after all; while others indicate that the prospect of OSHA not issuing a standard infuriated unions, so the DOL will, in fact, move forward. We do not have a firm date on when OSHA may issue an ETS as the Agency may be sending it through normal regulatory clearance at OMB. In the meantime, on Friday, March 12, OSHA announced a COVID-19 National Emphasis Program (“NEP”) designed “to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting SARS-CoV-2.” You can read more here on the NEP from our Workplace Safety and Environmental practice group.

For the moment, OSHA will continue to use the tools it’s employed throughout the pandemic to prosecute alleged COVID-19 safety violations. We don’t yet know if the NEP is an appetizer for an ETS main course, but there are policy reasons to not issue an additional ETS in this already-heavily regulated space. If we’re starting to see a glimmer of light at the end of the pandemic tunnel, issuing an additional ETS on top of the patchwork COVID-19 obligations the nation has experienced thus far doesn’t make an abundant amount of sense. Employers need time to reorient their COVID-19 plans based on updated OSHA requirements. The truncated ETS process doesn’t lend itself well to holistic consideration of relevant issues, including whether particular provisions are overly burdensome (just ask Cal/OSHA about its ongoing catch-up work to incorporate public concerns into its ETS, post hac).

Instead of issuing an ETS, OSHA could reinvigorate its past efforts at a broader infectious disease standard, allowing for appropriate input from all stakeholders to develop a reasonable, balanced, and feasible regulation to facilitate a more uniform, transparent response if and when we face a new pandemic. But time will tell, so stay tuned for OSHA’s ETS decision.

DOL Requests Biden Approval To Scrap Trump-Era Joint Employment and Gig Worker Rules. In the beginning of 2020, before the onset of the pandemic, the DOL under President Trump issued a new, narrower, more business friendly rule for determining joint employer status under the FLSA. Toward the end of 2020, the United States District Court for the Southern District of New York invalidated large swaths of the rule.  On January 6, 2021, the DOL, finalized a new rule, making it easier for companies, including those in the “gig economy,”  to classify their workers as independent contractors, rather than employees. The DOL justified the rule as a clarification and modernization of longstanding legal standards. Because the new Rule would not have taken effect until March 7, the Biden Administration, on January 20 stayed the effective date for all pending regulations for an additional 60 days.  The DOL published a notice for comment formally extending the effective date for the Independent Contractor regulation for an additional 60 days.  Notwithstanding significant comments including a thorough analysis filed by Seyfarth, the DOL extended the effective date until May 7.  However, on March 11 the DOL proposed to formally rescind the Independent Contractor and Joint Employer rules, noting that the joint employer rule is  “unduly narrow,” and issuing a notice of proposed rulemaking to rescind the final rule concerning independent contractor classifications.

House Passes Labor Wish List: PRO Act.  As we noted here, the PRO Act is back, and has once again passed the House of Representatives, but faces a grueling battle in the Senate. Recently, we here at the PMN hosted a podcast with our wonderful colleague Kyllan Kershaw, National Vice Chair of the firm’s Labor Management Relations practice group out of our Atlanta office, during which we discussed how the legislation, as a monolith, faces an unlikely path to enactment, which would include cautious moderate democrats flipping the script on the filibuster. However, the Act does represent a sort of labor “wish list,” and as Kyllan noted, is an effective political document.

Biden Replaces Top Lawyer At The EEOC. As it did at the NLRB, the Biden administration continues to stack crucial federal employment agencies with attorneys who will set an agenda more in line with administration priorities. To that end, last week the Biden administration terminated EEOC general counsel Sharon Gustafson of her duties after she refused the administration’s request that she resign. Shortly thereafter, the Biden administration appointed long-tenured EEOC litigation attorney Gwendolyn Young Reams as the Acting General Counsel of the EEOC. According to the EEOC, “[t]he General Counsel is responsible for managing, coordinating, and directing the Commission's enforcement litigation program.”

CDC Eviction Moratorium Struck Down By — Another — Federal Judge. Yesterday, a second Federal Judge held that CDC exceeded its authority in extending the moratorium on evictions. These rulings do not affect other eviction moratoriums, such as those at the federal,  state or local level. Feel free to reach out your favorite Seyfarth attorney if you have additional questions concerning how the moratoriums may, or may not, apply to your business.

Vaccine News Is Everywhere! Can Employers Require Employees Vaccinate? The intersection of the COVID-19 vaccinations and employment has been a hot topic for months now, and is an even more salient issue now that President Biden has announced purchasing 100 Million additional doses of J & J vaccine.  For a great refresher on that intersection, and whether employers can require workers get vaccinated, see our piece here. The short answer is yes: employers may require vaccinations prior to returning to work; however, employers must remain vigilant in accommodating employees who, due to medical disabilities or sincerely-held religious beliefs, decline or refuse to receive the vaccine.