Policy Matters Newsletter - October 31, 2022

More Of The Great Loosening.  Joe Biden surprised — and irked — many of his constituents when he announced during a 60 Minutes interview that the pandemic is essentially over. The World Health Organization would disagree on the label, but would agree that the end is nigh. Indeed, California Governor Gavin Newsom recently announced that the COVID-19 State of Emergency will end on February 28, 2023; Washington Governor Jay Inslee “announced the upcoming rescission of all remaining COVID-19 emergency proclamations and state of emergency by Oct. 31.” As Seyfarth noted here, however, Washingtonians must still adhere to the Health Emergency Labor Standards Act (HELSA), which continues to require employers provide certain benefits until the President declares an end to the national COVID-19 emergency. Moreover, as Seyfarth noted here,  a New York State Supreme Court (NY’s state trial court) Justice recently held that New York City’s public- and private-sector COVID-19 vaccination mandates are “arbitrary and capricious” in violation of State law. 

Despite all of the loosening, as Seyfarth noted here, litigation concerning employer vaccine mandates continues to expand. To date, Seyfarth has tracked approximately 200 complex or class cases filed throughout the country containing claims related to vaccination mandates, and they continue to pour in. Moreover, as Seyfarth summarized here, HHS has announced that the COVID-19 Public Health Emergency (PHE) has been extended another 90 days, and will run until January 11, 2023. The extension of the PHE means continued benefits for certain COVID-19 reasons, such as testing and telehealth coverage. For more information on compliance with the PHE and HELSA, contact your favorite Seyfarth counselor.

So, while the end of the COVID-19 pandemic woods are visible, we are not there yet. And employers should remain vigilant in handling all issues related to COVID-19.

What Does Bostock Mean? After SCOTUS laid down its landmark decision in Bostock v. Clayton County, Georgia, which we summarized here, The EEOC published much-needed guidance to provide clarity on its interpretation of Title VII protections for LGBTQ+ employees. The State of Texas sued, arguing the EEOC exceeded its authority by interpreting Bostock to extend to individual conduct such as bathroom access. The Court agreed, noting that the EEOC guidance improperly imposes dress-code, bathroom, and pronoun accommodations as “existing requirements under the law” and “established legal positions” which are not required under Title VII, according to the Court’s interpretation of Bostock. The EEOC is expected to appeal the decision.

Inflation Brings (Welcome?) Changes To Tax Code. By now, any person following the news knows that inflation is a serious problem, affecting consumers across the nation. One unexpected monetary benefit of soaring inflation is an increase in the amount we all can deduct for tax purposes as that amount, under current law, is tied to inflation. Specifically, the size of the standard deduction will jump 7 percent next year to $27,700, the IRS announced. While the IRS cannot unilaterally change income tax rates, the earnings thresholds will go up — the top 37 percent tax bracket, for example, will begin when married couples have more than $693,750 in earnings, up significantly from this year’s $647,850. And that is not the only monetary change inflation affects: the maximum amount people can put in health care flexible savings accounts will climb to $3,050, from $2,850;

California Expands Permissible Leave. As Seyfarth summarized here, Governor Newsom recently signed two important pieces of legislation that will expand leave for employees in the Golden State. First, AB 1041 expands the protections of both the California Family Rights Act and California Paid Sick Leave law, permitting California employees to “designate” any individual related by blood or whose association with the employee is the equivalent of a family relationship for whose care the employee make take leave under either of those statutes. Notably, an employee must be allowed to designate a person at the time the request for leave is made, so employers therefore cannot require employees to designate a person in advance. Second, AB 1949 requires employers to allow qualified employees up to five days of bereavement leave for the death of a family member. For now, the law does not explicitly require bereavement leave for the death of designated person (as explained above), but only for a traditional family member (“a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law”). Both bills contain a number of important nuances, so it is worth reading over the summary.

Stakeholder Sigh: DOL Extends IC Comment Period. Millions of individuals have a stake in the DOL’s proposed regulation governing independent contractor status, which we discussed here. The original due date for comments to the proposed regulation was right after the Thanksgiving Holiday, which raised the stress temperatures of numerous stakeholders. Thankfully, the Department has extended the due date for the comments from November 28 to December 13, 2022.

AZ Initiative A Model For Addressing Price Gouging? Currently, nearly 1 in 10 adults in the U.S. owe medical debt, including 3 million who owe more than $10,000. In light of this statistic, and a frustrating stall in state legislatures and Congress, advocates in Arizona have successfully placed a direct-democracy measure — Proposition 209 — on the ballot that would reduce maximum interest rates on medical debt from ten percent to no more than three percent per year. The proposition would also increase the value of a debtor’s home protected from creditors from $250,000 to $400,000 and decrease the portion of a debtor’s weekly disposable income subject to debt collection from 25 percent to 10 percent. Opponents of the measure have pointed out that that while the initiative is marketed as a medical debt initiative, its impact on debt collection would extend across the board. Other states are paying attention to how this measure fares in November. Stay tuned!

Pay Transparency Laws Sprouting Across The Union. SB 1162 out of California, which we discussed here,  has grabbed the majority of pay transparency headlines, but such legislation is certainly not relegated to the Golden State. New York City’s salary transparency law, which, goes into effect on Nov. 1, makes it an unlawful discriminatory practice to post any job listing that does not include the minimum and maximum salary or hourly wage offered for the position. A similar pay transparency law was passed by the New York State Legislature in June 2022, requiring private employers with four or more employees to disclose the minimum and maximum hourly wages or salaries that a covered employer in good faith believes it would pay for the position at the time of the advertisement. But it is not just the East and West Coasts, pay transparency requirements are currently on the books in several states and cities, including, Colorado, Connecticut, Maryland, Nevada, Rhode Island and Washington as well as localities in New York (Ithaca, Westchester County), New Jersey (Jersey City) and Ohio (Cincinnati and Toledo). While these laws differ in certain details, they all have the same goal: greater pay equity across genders and races.