Policy Matters Newsletter - May 20, 2022

DOL’s 2023 Priorities, Per Labor Secretary Marty Walsh. Additional personnel topped Labor Secretary Marty Walsh’s wish list for 2023 as he laid out next year’s proposed budget at a hearing in front of the Subcommittee on Labor, Health and Human Services, Education, and Related Agencies. During the hearing, Secretary Walsh was candid: “To be completely honest, I need more staff. We are understaffed at the Department of Labor and, and we’re understaffed in a lot of different places. In all of our offices we could use more people.” The Secretary’s next priority: OSHA and workplace safety. OSHA ended last fiscal year with just 750 inspectors, the lowest ever for the 51-year-old agency. Rep. Rosa DeLauro (D-CT), chair of the Subcommittee, noted in her opening statement that the White House is seeking a $355 million budget increase for worker protection agencies that includes a proposed $89 million increase for OSHA, to roughly $701 million.

When Secretary Walsh is not ensuring the smooth operation of the DOL, he moonlights as an advocate for mental health awareness, an American crisis that has gotten worse during two-and-a-half years of living under a pandemic. Secretary Walsh issued a statement posted to the DOL’s website, candidly (and bravely, to boot) discussing his struggles with alcoholism, and encouraging all with any kind of mental health issue to seek help.  We join the Secretary in his quest to end the stigma.

EEOC And DOJ Issue Important Guidance On Preventing AI-Related Disability Discrimination. As Seyfarth previously reported, in October 2021, the EEOC put employers on notice of an initiative to ensure that AI and other technology used in employment decisions comply with federal ant-discrimination laws. On May 12, 2022, discussed in more detail by Seyfarth here, the EEOC and DOJ  released guidance to help employers using AI to ensure their compliance with the Americans with Disabilities Act. These references provide examples of the types of tools employers are using and describe the ways in which employers might unknowingly discriminate in failing to reasonably accommodate or screen out disabled applicants. Companies should review this guidance and be aware of the specific ways in which AI tools can lead to disability charges and lawsuits, both of which are on the rise.

Legislative Update. While a fair amount of legislation is currently moving through The House of Representatives, many bills are stalled in the Senate. Below is brief look into where those measures currently stand.

• The House on Tuesday passed H.R. 7309, or the “Workforce Innovation and Opportunity Act.” The measure appropriates approximately $80 Billion from fiscal 2023 through 2028 for federal workforce development programs. The vote in the House was almost exclusively along party lines, 220-196, portending a tough road in the Senate.
• The House Education and Labor Committee voted 27-19 along party lines Wednesday to approve H.R. 7701, targeting wage theft, or compensation at a rate below what workers and employers agreed on, whether via an employment contract or collective bargaining agreement. The bill would require employers to deliver detailed paystubs, maintain employee-accessible wage records, prohibit mandatory arbitration agreements, and collective action waivers, and would hike fines for violating the Fair Labor Standards Act. Like with H.R. 7309, the party-line vote in the House Committee does not portend well for the measure’s fate in the Senate.
• Last week, the House passed H.R. 309, or the Rights for the Transportation Security Administration Workforce Act of 2021, again on a mostly party line vote of 220-201. The legislation calls for giving TSA employees the rights and protections provided by Title 5 of the U.S. code, which is what other federal workers are subject to, and benefit from. For example, the measure would give TSA workers the right to collectively bargain. The White House “strongly supports” the passage of the bill, calling it “an important step in ensuring equitable pay for the TSA workforce and is aligned with the 2023 President’s budget request to improve pay for TSA employees.” Regardless, the bill faces an extremely uphill battle in the Senate.
• In March, the House passed H.R. 2954, or the Securing a Strong Retirement Act of 2021 (SECURE Act) by an overwhelming vote of 414-5. The bill would require employers that establish new defined contribution plans to automatically enroll newly hired employees, when eligible, at a pretax contribution level of 3 percent of the employee's pay, enable older workers to contribute more to tax-advantaged retirement accounts, and help small employers offer retirement plans by giving them a tax credit. The Senate is considering its own version of the measure, and will likely vote on the measure in Committee in June. Stay tuned, as this measure has the best chance of actually becoming law.
• In the beginning of April, Senator Ben Cardin (D-MD) and Senator Roger Wicker (R-MS) introduced what was then a bi-partisan effort, the Small Business COVID Relief Act of 2022 (S. 4008), to provide COVID relief for restaurants and other “hard hit” industries. Yesterday, though, the Senate failed to invoke cloture on the motion to proceed, in a 52-43 procedural vote that was subject to a 60-vote threshold. The cloture vote was likely a death knell to a months-long effort to provide a final round of relief for industries that suffered major revenue losses during the pandemic. The House passed a similar COVID-19 relief package in April on a mostly party line vote, but we do not expect any movement in the Senate.

Where Is The BIF Money Going? President Biden has touted the Bipartisan Infrastructure Law, aka the Infrastructure Investment and Jobs Act, as one of the big wins his administration has accomplished. But that measure passed months ago, and it is time to start asking where the money is going. Well, last week, the White House published a list of more than 8,500 infrastructure funding allocations made since the infrastructure law was enacted six months ago. The appropriations are mostly earmarked for highways and bridges, as well as grant awards for airports and some water and resiliency projects. So far, the largest specified project funded is an Advanced Reactor Demonstration Program grant under the Department of Energy for a project in Kemmerer, Wyoming, for $1.3 billion. The list was released as part of a sort of guide to the infrastructure law published to mark the six-month anniversary of the law’s signing. A lot of work, and a lot of allocations, remain. Stay tuned.

The Future of the EV? As Seyfarth recently reported in its Future of Automotive Series, electric vehicle manufacturers and interest groups representing dealers and technicians who sell and service gas-powered automobiles continue to battle in state legislatures. Over the past decade, several state laws have been passed, with some states siding with EV manufacturers, allowing them to sell and service vehicles directly, while some states permit only Tesla to do so, while other states completely prohibit EV manufacturers from direct sale and service. The pace of legislative change has slowed recently, however. And while there has been a push nationally to promote the adoption of EVs, including an executive order from the Biden Administration targeting a 50% EV sales share in the US by 2030, the existing state laws and the reluctance of state legislatures to make necessary changes will likely continue to hinder EV adoption and distribution directly to consumers.

States Take The Paid Family Leave Mantle In Light of Congressional Inaction.  As Seyfarth reported, on May 10, 2022, Delaware became the eleventh state to enact a paid family leave law — the Healthy Delaware Families Act. This continues a growing trend of states passing paid leave laws in the absence of Congressional action on Capitol Hill. The patchwork of state leave laws is frustrating to employers doing business in more than one state, given the different requirements and setups of the various state laws. But unfortunately, it doesn’t look like Congress is likely to act on this issue soon — it is more likely that additional states will pass their own laws that employers will have to contend with.

More Of The Great Loosening: California Eases COVID Workplace Safety Rules. On April 26, the Occupational Safety and Health Standards Board — which is part of the California Division of Occupational Safety and Health — voted to approve the third readoption of the COVID-19 emergency temporary standards, or ETS, which became effective May 06. We have been following how the California administrative state deals with the pandemic through its ETSs. As far as substance goes, while much of the current ETS remains intact, the changes should ease employer headaches by removing some of the more burdensome requirements. By way of example, the new ETS:

• removes the definition of “fully-vaccinated” from the ETS — therefore, the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees;
• removes, in most instances, face covering requirements for employees not fully vaccinated;
• removes most cleaning and disinfection requirements; and
• updates the definition of testing to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).

Seyfarth had put together an excellent blog on the new ETS, summarizing all of the relevant requirements. It is worth a read.