Seyfarth Policy Matters Newsletter - April 23, 2020

Congress Replenishes Paycheck Protection Program (PPP) Through its Phase Four Coronavirus Relief Package. On Tuesday, via unanimous consent, the Senate passed the Paycheck Protection Program Increase Act of 2020; Speaker of the House of Representatives Nancy Pelosi announced the measure will also pass the House today, sending the legislation to the President for his expected signature. As a high-level summary, the appropriations breaks down to $310 billion in additional lending authority for the Paycheck Protection Program, $60 billion for separate disaster loans to small businesses, $75 billion for hospitals, and $25 billion for virus testing. For a more detailed analysis of the measure, see Seyfarth’s alert regarding the same, here.

NYC Human Rights Agencies Issue Discrimination / Harassment Guidance on the Heels of EEOC Guidance. As Seyfarth detailed here, The U.S. Equal Employment Opportunity Commission (“EEOC”), the New York State Division of Human Rights (the “Division”), and the New York City Commission on Human Rights (the “Commission”) have all recently issued guidance on discrimination and harassment in light of the COVID-19 pandemic. As we noted in this space last week, the EEOC through its guidance has emphasized that it will not ease enforcement of discrimination or harassment laws in light of the pandemic. This morning, the EEOC issued updated guidance regarding the same. The Division’s guidance and the Commission’s guidance followed on the heels of the EEOC guidance, and in most relevant ways, mirror that guidance. Indeed, the Commission’s guidance clarifies that it is adopting the EEOC’s guidance. As such, employers—on top of the thousand other issues employers must prepare for—must heed the guidance as the EEOC, and other important enforcement agencies, as they have made evident they will not let discrimination claims slip through the COVID-19 cracks.

Updated EEOC Guidance Allows for Limited Employer Testing. As the nation prepares to return to work, employers have raised numerous questions about how to do so safely and legally, particularly when it comes to testing. For example, may an employer administer a COVID-19 test before permitting employees to enter the workplace? In today’s updates guidance, the EEOC answered in the affirmative. In order to maintain ADA compliance, the EEOC notes that testing can only be administered when doing so is "job related and consistent with business necessity." In this situation, according to the EEOC, COVID-19 testing is job-related because “an individual with the virus will pose a direct threat to the health of other” employees. The guidance recommends employers formulate a testing policy in accordance with guidance from the USDA and the CDC.

Administration Issues Watered Down Immigration Halt. As Seyfarth reported here, Monday night President Trump tweeted that he would order a temporary suspension of all immigration into the United States. Though the consulates were already cancelling appointments, such a complete suspension would have represented the most severe immigration restriction to date. Thankfully, as Seyfarth noted here, the President walked back the would-be reach of the proposed order during his press briefing on Tuesday. Yesterday, the President issued the promised executive order, but it falls well short of the complete ban originally proposed via tweet. Specifically, the order "pauses" the issuance of green cards for those outside the United States for 60 days, describing it as an effort to protect Americans from competition from foreign workers during the coronavirus pandemic. The order contains several important exemptions: medical professionals, defined as "a physician, nurse, or other healthcare professional”; those applying for a green card though the EB-5 program; temporary work visas, including H-1B specialty workers and H-2A agriculture workers; and those already in the United States. So, despite the media fervor over the tweet, the order essentially just formalizes limits already in place due in part to the already closed Citizenship and Immigration Services field offices.

More Supplemental Sick Leave Obligations for California Employers. As Seyfarth detailed here, on April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, requiring employers of Food Sector Workers to provide up to two weeks of Supplemental Paid Sick Leave (“SPSL”) to employees unable to work due to COVID-19. The order is intended to provide relief for employees who find themselves in the gap left by the federal Families First Coronavirus Response Act (FFCRA), which applies only to certain businesses with fewer than 500 employees. Originally, AB 3216, introduced by Assemblymember Ash Kalra, was intended to be the state-wide vehicle for filling the gaps left by the FFCRA, but as we noted in this space, the California Legislature is not slated to return until May 4, and even that date is very tentative. The statewide order comes after San Francisco and Los Angeles both expanded paid sick leave for employees.

Preparing for the Long Road to Return to Work. The National Governors Association on Wednesday, April 22, released a new road map for reopening the economy that outlines a two-stage process, subdivided into five points per stage. The first stage is titled “Building the Public Health Infrastructure” and is focused on expanding testing capabilities. The second stage is titled “Creating and Executing a Plan to Gradually Reopen the Economy,” and contains elements such as setting concrete criteria and defining the stages for reopening. Similar to the Association’s road map, on Monday, April 20, New Jersey Gov. Phil Murphy reiterated that he won’t rescind the stay-at-home order unless the federal government makes more tests available to states and provides additional resources to assist in contact tracing, which will help reduce the likelihood of new hot spots developing after social distancing standards are relaxed. Also on Monday in New York, Republicans in the New York State Assembly, led by Minority Leader Will Barclay, released a multi-point plan for phased-in reopening of the state’s economy on a regional basis. The plan contains recommendations of its own, including a proposal to form a panel of experts in both economic development and public health. Seyfarth held a webinar on Thursday afternoon, April 23, titled “Critical Return to Work Issues for Employers” with the guiding philosophy that now is the time for employers to start laying the groundwork for implementing specific return to work plans, while waiving a yellow flag of caution to do so carefully and in conformance with the advice of the best health care experts. To sign up to receive a recording of the webinar, click here.

New York Attorney General Argues FFCRA Regulations Too Employer-Friendly. Last week, the State of New York filed a complaint against the U.S. Department of Labor (“DOL”), challenging the legality of the FFCRA’s implementing regulations, promulgated by the DOL. The lawsuit asks the United States District Court for the Southern District of New York to block the regulations and restore the FFCRA to its intended effect. The rule at issue provides that “an Eligible Employee caring for his or her Son or Daughter may not take Expanded Family and Medical Leave where the Employer does not have work for the Eligible Employee.” (DOL Reg. § 826.20(b)(1)). New York’s Attorney General argues the rule “unlawfully narrows workers’ eligibility for emergency family leave and paid sick leave guaranteed by the DOL,” and lends too much discretion to employers. Yesterday, Seyfarth published a detailed analysis of the claims in the complaint and the implications for employers.

NYC Council Proposes Litany of Employee-Friendly Bills at Its First Remote Session. The New York City Council held its first remote session on Wednesday, April 22, during which lawmakers introduced a long list of bills meant to slow the spread of the coronavirus and to help New Yorkers who have had their health or jobs or finances affected by the disease. The session took place entirely over Zoom. While only several dozen bills were voted on, two bold employee-friendly bills were introduced. One bill (Int. No. 1923), introduced by Ben Kallos (D), would require essential businesses to retain employees during the pandemic unless there are narrowly-defined "just cause" reasons. The other bill (Int. No. 1918), introduced by Laurie Cumbo (D), would require businesses with 100 or more employees to pay non-salaried essential workers a premium of between $40 and $75 per shift. The proposals immediately drew condemnation from business groups: “Most businesses are not even thinking about profitability right now because they are consumed with concerns about their viability,” the Manhattan Chamber of Commerce, led by Jessica Walker, said in a statement. Other employee-friendly bills proposed by the NYC Council at the meeting include Int. No. 1926, Int. No. 1285. There isn’t a specific timeline for voting on all the proposed bills, but Speaker Johnson said he wants to move quickly, and the next meeting of the full legislative body is currently scheduled for May 5. Read Seyfarth's full analysis of the proposal here.