Seyfarth Policy Matters Newsletter - April 30, 2020

Administration Issues Meat-Packing Executive Order Falling Short of Original Plan. On April 28, President Trump issued an Executive Order entitled “Executive Order on Delegating Authority under the DPA with Respect to Food Supply Chain Resources during the National Emergency Caused by the Outbreak of COVID-19.” There was much talk in the press about the need to protect meat packers against liability. Indeed, prior to signing the order, President Trump told reporters "[w]e're going to sign an executive order today, I believe. And that will solve any liability problems where they had certain liability problems." Despite these indications, the executive order itself says nothing about this issue, perhaps indicating the political and legal difficulties in doing so through an executive order, as relatively uncharted territory. In a joint guidance issued Sunday, OSHA and the CDC suggested numerous precautions that food processors can take to protect workers in meatpacking plants, which Seyfarth covered here. OSHA also announced it will not cite meat packing plants for safety violations where there is a good faith attempt to comply with safety standards. Indeed, while OSHA has issued guidelines for reopening, it has not issued mandatory COVID-19 safety guidelines, and OSHA inspections are down overall. While employers should of course comply with OSHA standards, employers must also be concerned with potential liability under state tort law in cases brought by enterprising plaintiffs’ attorneys.  For a comprehensive review of defenses which may or may not be available to employers defending such suits, see Seyfarth’s coverage here.

EEOC Issues First Opinion in Decades. As we noted here, here, here, and here, the Equal Employment Opportunity Commission (EEOC) has remained very busy during the pandemic. The EEOC won’t sleep this week either, as the press has reported the EEOC intends to issue an opinion letter clarifying that opting into a tax credit for hiring individuals with disabilities, veterans, and other underrepresented workers doesn’t violate anti-discrimination laws. The EEOC voted to approve the letter on Wednesday in its first ever remote session. The opinion letter wasn’t the only agenda matter the EEOC addressed in its first virtual meeting—the EEOC also voted to rescind Section 604 of the EEOC's Compliance Manual, discussing theories of discrimination, and Appendix C, Section 604, concerning Polygraph Examinations.

Administration Breathes New Life into Laid-Off Employee Health Care Plans – DOL Issues Flurry of Guidance. Yesterday, the Department of Labor (DOL), Internal Revenue Service (IRS), and Treasury issued joint guidance providing that insurers can allow the newly jobless to sign up for the coverage extension, known as COBRA, at any time for up to 60 days after President Donald Trump lifts the national emergency declaration for Covid-19. The DOL also issued separate guidance yesterday, providing additional time for plan officials to supply documentation required under the Employee Retirement Income Security Act of 1974 as long as they make "a good faith effort" to supply them as soon as administratively practicable.  The DOL issued an FAQ document concerning those two pieces of guidance. This week, the DOL also issued guidance on unemployment compensation availability, clarifying that gig workers, such as rideshare drivers, can qualify for benefits when there are too few customers looking for rides. Finally, this morning, the DOL published much-needed frequently asked questions about the operation of the WARN Act amid the COVID-19 pandemic.

FDA Shows Its Value During the COVID-19 Pandemic. As Seyfarth explains here, here, and here, the FDA, like the EEOC and DOL has been busy offering guidance on how to navigate the COVID-19 world. To speed research into COVID-19 convalescent plasma, the FDA published “Investigational COVID-19 Convalescent Plasma Guidance for Industry” for health care professionals looking to use convalescent blood plasma as a treatment for COVID-19. On April 24, 2020, the FDA issued an FDA Drug Safety Communication “caution[ing] against use of hydroxychloroquine or chloroquine for COVID-19 outside of the hospital setting or a clinical trial due to risk of heart rhythm problems,” and strongly recommended close supervision during treatment. The FDA has taken many steps to assist in the response to the COVID-19 health crisis, including easing regulations, expediting the availability of necessary medical equipment, and creating streamlined procedures for developing tests and potential treatments. In addition, the FDA has released guidance concerning how the general public can help slow the spread of the virus. 

New York Policymakers Attempt to Preempt Racial Inequalities in Return to Work Scenario, and Beyond. As states prepare for a return to work, New York City’s democratic policymakers are looking to position racial inclusion and equity as a key spoke in any re-built economic wheel. At the local level, New York City Mayor Bill de Blasio issued a statement on Sunday noting, among other things, that the City will form a special Administration Taskforce on Racial Inclusion and Equity. The main aim of the taskforce will be “to engage [the] hardest-hit communities.” While at the state level, last Friday, New York State Senator Luis Sepulveda— representing a large swath of the Bronx borough of New York City—introduced S. 8223, which, if passed, would mandate that any employer with more than 100 employees or employers who are applicants for, or beneficiaries of, grant funds or municipal contract awardees in excess of $50,000 per year, provide workforce demographics and equity measurements to the NYS Division of Human Rights annually. These employers must include in their demographic information, inter alia, each employee's job category, date of hire, salary or wages, training received, raises, promotions, disciplinary actions, terminations and benefits, including but not limited to unpaid benefits or privileges such as flexible scheduling, the ability to work from home, or the ability to bring children to work.

New York and New Jersey Establish Re-Opening Advisory Boards. In New York on Monday, Governor Andrew Cuomo said that statewide stay-at-home restrictions set to expire May 15 will likely be extended in many parts of the state while also noting that in some regions of the state, “you could make the case that we should un-pause on May 15.” On Tuesday, Governor Cuomo announced the creation of the NY Forward Advisory Board to advise on the regional re-opening. The board will be chaired by former secretaries to Governors Steve Cohen and Bill Mulrow, and includes over 100 business, community, and civic leaders from industries across the state. Governor Cuomo also outlined additional guidelines for the phased plan to re-open New York on a regional basis. In New Jersey, Governor Phil Murphy released The Road Back: Restoring Economic Health Through Public Health, outlining six principles that will guide the state in deciding whether to relax the March 21 stay-at-home Order. Similar to New York’s advisory board, Gov. Murphy also signed Executive Order No. 131 on Tuesday establishing the Governor’s Restart and Recovery Commission to “provide guidance to the Governor for reopening the New Jersey economy in a way that is consistent with the State’s public health efforts to slow the spread of COVID-19.”

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