Policy Matters Newsletter - March 30, 2021

Education and Labor Subcommittee Hearing on Important Employment Legislation. As we noted here, on Thursday, March 18th the Civil Rights and Human Services Subcommittee on Workforce Protections held a hearing entitled “Examining Legislation to Confront Workplace Discrimination.” At that hearing, the Paycheck Fairness Act, the Protecting Older Workers Against Discrimination Act (POWADA), the Pregnant Workers Fairness Act, and the Providing Urgent Maternal Protections Act were all covered, and testimony was taken on each of them.   Seyfarth partner Camille Olson testified about all of these bills, focusing primarily on the Paycheck Fairness Act and POWADA and their potentially negative impact on employers and employees alike. A total of four witnesses testified. The bills have gone through Committee markup and all were approved on essentially party-line votes. These measures will almost assuredly pass the House of Representative, but face a steep climb in the Senate. However, as President Biden noted in his presser last Thursday, he is more receptive to changing the filibuster rules and even Senator Manchin said he might consider some changes. During the presser, the President unequivocally stated that the filibuster is a relic of the Jim Crow era. If the filibuster is modified or even abolished, this space will likely be much more full of statutory discussions. Stay tuned.

Speaking Of The Paycheck Fairness Act, This Week Was Equal Pay Day! Throughout Women’s History Month, Seyfarth has followed its custom and recognized Equal Pay Day and Women’s History Month with webinars, podcasts, and legal alerts.  This year, equal pay day — the date represents how far into the year women must work to catch up to what men made in the previous year — happened to fall in the same month, March 24, 2021, we celebrate women’s history. In Homage to the day, Seyfarth has released a 2021 U.S. 50-State Pay Equity Desktop Reference, the 2021 Developments in Pay Litigation Report, and, introducing, the Global Pay Equity Desktop Reference.

State Legislation Seeks Stand In For Lack Of Federal COVID-19 Liability Shield. As we noted here back in September, many states, as they did with the numerical limitation on mandatory leave under the FFCRA, have filled the gap left by the dearth of a federal liability shield by legislating their own. States legislatures are moving liability shields with a vigor: since just November, six additional states have passed liability shields and one state has extended  its  existing liability shield.  Leaving such legislation up to the states, however, has left a hodgepodge of legislation, each with differing levels of protection, ranging from protections for only certain sectors, such as health care providers, to a much broader sort of premises liability protection extended to businesses as long as they substantially comply with COVID-19 federal, state, or local procedures. The Seyfarth Team, led by Honore Hishamunda, put together a fantastic compendium of states that have passed some kind of liability shield. While state attempts to “fill in the gaps” left by the Feds are commendable, it is simply no substitute for a broad federal standard, let alone an exclusively federal COVID-19-related claim, as Senate Republicans proposed months ago. It should also be noted that some legal doctrines already exist to protect employers faced with COVID-19 litigation, which Seyfarth wrote about here.

Enforcement, Enforcement, Enforcement. As we noted here, since the onset of the pandemic, “testing, testing, testing” was the refrain for employers across the country. But now that testing is more readily available, and businesses are seeking to reopen as safely as possible, the focus in the labor and employment world has turned to enforcement, especially at the DOL. To that end, it was recently reported that the DOL’s Wage and Hour Division released the enforcement hounds, so to speak, by revoking 2019 instructions issued by the Trump-appointed administrator Cheryl Stanton, which centralized enforcement decisions in the national office. Essentially, this memo restores the previous practice of delegating enforcement authority to regional and district office personnel to investigate and enforce on employers accused of mis- or under-paying workers without requiring approval from D.C. Just last week, we hosted a webinar featuring a variety of subject matter experts discussing what employers can expect regarding enforcement as it relates to: EEO, Immigration Compliance, OSHA, OFCCP, and the Wage & Hour Division at the DOL.

The Department of Labor Issues Third Set of FAQs on the Families First Coronavirus Response Act (FFCRA). As Seyfarth explained here, the FAQs build on their predecessors and address specific fact patterns relating to testing, vaccines, and notice to individuals regarding changes in their health coverage. Past FAQs advised that health plans may not limit the number of COVID-19 tests that it will cover for an individual, even if that individual is asymptomatic and has no recent exposure. These FAQs clarify that costs of testing must be covered regardless of location. Plans must cover, without cost sharing, the price tag and administration of all vaccines recommended by the U.S. Preventative Services Task Force or the Advisory Committee on Immunization Practices, which now includes the Pfizer BioNTech, Moderna, and Johnson & Johnson vaccines. Plans should notify participants about coverage of qualifying vaccines as soon as possible. Lastly, these FAQs confirm that Employee Assistance Programs can offer vaccines and remain an excepted benefit under the Affordable Care Act.

Marty Walsh Confirmed As Labor Secretary: Now How To Implement The Mayor’s Massive DOL Agenda. What seems like Eons — and is in fact one impeachment — ago, President Biden, as Seyfarth noted here, and we noted here, and Podcasted here, selected former Boston Mayor Marty Walsh to lead the Labor Department. Last week, after months of hearings and debate, the Senate finally confirmed the former Mayor by a vote of 68-29. The recently confirmed cabinet Secretary faces a daunting set of priorities, especially as the labor market has been decimated by the pandemic. On the expansive “to do” list include big policy portfolio issues: most pressing is, of course, the pandemic response, including a potential workplace safety rule, which we explained here, and discussed here (OSHA has already released a National Emphasis Program Seyfarth explored here); union oversight; Joint Employment under the FLSA; Independent Contractor classification under the FLSA; and Rules on Tipped Wages, just to name a few. Like his counterpart at the Department of Justice, Secretary Walsh will, for the moment, have to implement his agenda without his principle team members, like Deputy Secretary nominee Julie Su, currently Director of the California Department of Labor, whom still awaits confirmation.

Its Infrastructure Week! Seriously, Though, A Real Package Could Materialize. While we jest, just last Thursday, President Biden held his first press conference as the oval office occupant, during which he praised the American Rescue Plan and telegraphed the administration’s next priority: a massive infrastructure bill. President Biden is said to be preparing a proposal for a $3 trillion infrastructure plan, aimed at fixing and enhancing America's aging and partially decrepit travel ways.  Amtrak's most loyal customer — President Biden, for those uneducated on his travel proclivities — plans to push for increased investment in railways, airports, road, and bridges, a proposal that will be welcome to many states, but is likely to face Republican opposition in Congress due to its high price tag, particularly on the heels of Congress passing the $1.9 Trillion American Rescue Plan. Biden's proposal is at least partially motivated by China's recently announced 15-year plan for its transportation network, which calls for an additional 162 civilian airports, as well as an extension of its rail network by approximately 33,000 miles. Additionally, the Belt and Road initiative has committed $575 billion in energy plants, railways, roads, ports and other projects across the globe. In addition to planes, trains, and automobiles, expect the Biden bill to have strong and expensive components for health care, internet expansion, possibly paid leave, and other social safety net components. These components have long been infrastructure priorities announced by then Candidate, and now President, Biden, so expect a strong push. 

California: A Tale of East And West. On Monday, March 22nd, the Supreme Court heard oral argument in Cedar Point Nursery v. Hassid, which involves a challenge to a long-standing California regulation that allows union representatives to access the property of agricultural businesses to attempt to organize employees. The businesses challenging the regulation argue that it amounts to an unconstitutional taking of property without compensation under the Firth Amendment. The State of California defended the regulation, pointing to its narrow tailoring: it only allows a limited access to the property for a limited amount of time for the limited purpose of speaking to employees. The justices grappled with both arguments, but the majority seemed to favor the businesses’ argument. A ruling on the case is expected this summer.

As Seyfarth noted here, while the nine in robes sitting back East contemplated the constitutionality of the California regulation, out West, the California Legislature voted to revive and expand the COVID-19-related supplemental paid sick leave law that expired on December 31, 2020, and Governor Newsom signed it into law the following evening. The law became effective immediately once signed, with a 10-day grace period for compliance, and it applies retroactively to January 1, 2021 (thereby requiring back payments). Unlike the old CA-SPSL, which covered only employers with 500 or more employees, the new law applies to employers with more than 25 employees. The new CA-SPSL also expands covered uses, including time for getting or recovering from getting a vaccine.