Seyfarth Policy Matters Newsletter - March 26, 2020

Senate Passes Historic $2 Trillion COVID-19 Legislation; House to Vote on the Same Tomorrow. As you are well aware, the Senate last night unanimously passed a $2 trillion financial relief package, the Coronavirus Aid, Relief, and Economic Security Act (CARES) for companies and workers adversely affected by the coronavirus crisis. Proceeding that bill was the Families First Coronavirus Response Act (FFCRA), which specified new mandated family and sick leave requirements for employers with less than 500 employees, effective April 1, 2020, sun setting December 31, 2020. Seyfarth analyses of those measures can be found here and here. The CARES Act does not make any substantial changes to these leave provisions. However, provisions in Speaker Pelosi's proposed legislation introduced during the Senate debate on the CARES Act, which would have substantially amended the FFCRA, including dropping the thresholds to covering employers with one or more employees, did not make their way into the CARES Act. Nor did a provision in the Pelosi legislation which would have mandated an OSHA emergency temporary standard related to exposure to the coronavirus. Of note, however, is a section of the CARES Act which imposes a neutrality requirement during an organizing campaign on mid-size businesses accepting loans from the government. While the practical impact and reach of this provision is unclear, it certainly sets a bad precedent. In her press conference this morning, Speaker Pelosi announced the House will vote on this measure tomorrow; the House is expected to pass the bill. Note that, as a heads up, a variety of state attorneys general are reportedly sending a signed letter to many, larger companies urging that they voluntarily comply with the legislation. As discussed below, the Department of Labor has issued preliminary guidance for the Act and has opened up a portal for comments.

Department of Labor (DOL) Issues Guidance on Families First Coronavirus Response Act (FFCRA). The DOL on Tuesday provided a Fact Sheet for Employers and a Question and Answers document containing important FCCRA compliance information. As we have previously written, the FFCRA requires certain employers to provide their employees with paid leave for certain specified reasons related to COVID-19. The fact sheet defines a covered employer under the FFCRA, qualifying reasons for an employee to take leave, how much leave must be provided, how wages should be calculated, availability for employer tax credits, and importantly, penalties for violation of the FCCRA. The Q&A provides guidance on a number of frequently asked questions, such as which employers the FCCRA applies to, how much pay is due to part-time employees, FLSA overtime considerations, and what constitutes the regular rate of pay. The Q&A also notes that the DOL will be issuing further guidance in the form of implementing regulations, and that enforcement of the FFCRA’s paid leave provisions will begin on April 01, 2020. The DOL has also pledged to not enforce the FFCRA for the first 30 days, on the condition the employer has acted reasonably and in good faith to comply with the Act. Importantly, however, this pledge does not preclude a private right of action for violation of the FFCRA. Finally, yesterday, March 25, 2020, the DOL issued the anticipated mandatory notice, which certain employers will be required to post or distribute. For a comprehensive, in-depth analysis of the DOL guidance, please see Seyfarth’s legal update here.

Departments of State and Homeland Security Issue (DHS) Additional Immigration Guidance. As we detailed extensively here, the DHS has issued guidance on H-1B Cap Registration, I-9 Compliance Flexibility, Petition Signature Requirements, restrictions on in-person visits, and various travel restrictions. The Department of State also issued additional guidance concerning visa processing applications and employment-based adjustment of status.

CMS Suspending Specified Facility Inspections in Light of COVID-19. Recently, a nursing home in Kirkland, Washington suffered a severe outbreak of COVID-19. That nursing home, by itself, accounts for almost half of all nation-wide COVID-19 cases. In response to this outbreak, the Centers for Medicare and Medicaid Services (CMS), working in conjunction with Centers for Disease Control and Prevention (CDC), has announced that it will suspend all routine facility inspections and surveys for a variety of facilities, including hospitals, nursing homes, hospices and home health agencies. More specifically, during the time of COVID-19, the following inspections will not be conducted: (1) standard inspections for nursing homes, hospitals, home health agencies, intermediate care facilities for individuals with intellectual disabilities, and hospices; and (2) revisit inspections of facilities that CMS concluded have not put the health and safety of those in its care at risk; or, in CMS parlance, are not subject to immediate jeopardy. For more information on this important issue, please read Seyfarth’s legal update regarding the same, which can be found here. For more information on COVID-19 generally, please see Seyfsrth’s comprehensive resource center.

EEOC Chair Issues Reminder that Employers Must Continue to Abide by Anti-Discrimination Laws. EEOC Chair Janet Dhillon recently composed a message that serves as a reminder that, despite the uncertainty caused by the pandemic, employers must continue to comply with each anti-discrimination law the EEOC enforces. The Chair’s message helpfully links to the Agency’s fact sheets on the anti-discrimination measures it enforces.

Foreign Doctors’ Gloveless Hands Tied due to U.S. Immigration Rules. While the federal government has generally relaxed requirements for health-care professionals in light of the pandemic, it has not done the same for immigration requirements for foreign-born doctors, nurses, and other health-care professionals. These health-care professionals have expressed their strong desire join the COVID-19 fight and provide much-needed relief to the most highly impacted regions. Most of these professionals, however, cannot join that fight because of the U.S.’ H-1B visa policy. Specifically, foreign-born doctors working on H-1B visas are relegated to work in the program the visa specifically delineates. The need for assistance is particularly acute in rural areas, where foreign-born doctors’ H-1B visas typically do not permit them to work. Citizenship and Immigration Services has the authority to permit H-1B visa doctors to move more freely. But, since Congress’ COVID-19 response has effectively sucked up all the oxygen in room, this issues has apparently slipped through the governmental cracks.

California Department of Finance tells Agencies That Enforce the State’s Employment Laws to Brace for Economic Turmoil. Will Other Departments of Finance do the Same? On Tuesday, March 24, the California’s Department of Finance issued a notice to all state agencies informing them, in a nutshell, that they are not going to receive the dollars they were allocated in the budget Governor Newsom revealed in January. The notice informs state agencies that the state will now be operating under a workload budget, which limits which programs that can receive certain appropriations. As a result, the letter states, “agencies and departments should have no expectation of full funding for either new or existing proposals and adjustments.” It is often the case that as California goes, so goes the nation. Here is our note of hope that the rest of the country will not be forced to implement such restrictive economic measures.

Update: State Reactions to COVID-19. Last week, the Policy Matters Newsletter issued an update on the major state responses to COVID-19, which are too many to mention in this space. Here, you can find the detailed updates on each state’s response. Without delving too far in the weeds of each state’s response, it is notable that all 50 states have declared states of emergency, giving governors emergency powers. However, the individual policy responses from states have been widely-varied in scope. It is also notable that the most comprehensive deployment of government resources has come from bluer states, whereas redder states have tended to institute less restrictive measures.