Seyfarth Policy Matters Newsletter - April 9, 2020

Battle Over Additional Congressional COVID-19 Relief Legislation Sizzles then Smolders. All week, Democrats and Republicans have squabbled over how much aid, and what that aid should be earmarked for, in additional stimulus legislation. Republicans sought unanimous consent for a $250 billion package to replenish the small business loan program; Democrats sought to double the size of the emergency relief bill by adding $100 billion for hospitals and $150 billion for state and local governments. Sen. Ben Cardin, D-Md., objected to the request for unanimous consent, effectively blocking the Republican push to unanimously pass the bill. Despite 6.6 million US workers joining the jobless rolls last week, the Senate adjourned with no deal to deliver coronavirus aid as Democrats and Republicans rejected each other's bids. Continue to monitor this space, as we here at PMN will continue to update on this stimulus development. All COVID-19 updates, including updates concerning the stimulus in the CARES Act, can be located in Seyfarth’s handy COVID-19 resource center here.

NLRB Walks Back Implementation of Election Rule in Light of Pandemic. Just last week in this space, we explained the NLRB finalized three amendments to Part 103 of its Rules and Regulations. The most relevant amendment provided that “[e]lections would no longer be blocked by pending unfair labor practice charges.” In the time since the rule was finalized, the NLRB has delayed implementation of the controversial rule until July 31. This week, Seyfarth issued a detailed summary of the NLRB’s truncated operations during the pandemic.

Numerous States Order Insurance Companies to Cover Workers During Pandemic. California, Ohio, Colorado, Wisconsin, and Maine have all issued orders requiring or encouraging insurers to let employers continue covering employees under group policies—even if employees would normally lose eligibility under their insurance contract due to layoffs or reduced hours. In explanation of the order, Maine Superintendent of Insurance Eric Cioppa stated “I am ordering [insurance] carriers . . . to suspend the application of any group health plan contract provision that terminates coverage when an eligible employee is no longer actively employed by the group policyholder” in order “[t]o avoid the risk that people might lose their health benefits coverage when the need is greatest.” 

L.A. Mayor Eric Garcetti Issues Emergency Order Expanding Already Hefty Employer Obligations. Beginning Friday, April 10, certain L.A. employers—grocery stores, supply stores, hotels, etc—must provide, at the employers’ expense, non-medical grade face coverings for their employees; permit their employees to wash their hands at least every 30 minutes; provide access to clean, sanitary restrooms, stocked with all necessary cleansing products; implement social distancing measures for customers, visitors, and employees. Seyfarth issued a legal update, detailing the requirements within the various emergency orders issued by LA.

DOL Continues to Expand Already Lengthy Guidance with Families First FAQs. The DOL has kept a running document of responses to frequently asked questions regarding the Families First Coronavirus Response Act (“FFCRA”), which has now hit a staggering 79 questions and answers. Seyfarth has compiled each of those questions into a table of contents. This week, the DOL published guidance on an additional 19 frequently asked questions. The newest guidance relates mostly to leave to care for others (it cannot just be “anyone”), paying seasonal workers, and taking FFCRA leave if receiving workers’ compensation or on a leave of absence. While we identified some areas which appeared inconsistent with the regulations, today, the DOL issued corrections to the regulations, ostensibly correcting discrepancies. Today, the EEOC joined the DOL in issuing additional guidance on compliance with the ADA, the Rehabilitation Act, and Other EEO Laws in the time of COVID-19.

New Regulation Expands Health Care Provider Exemption to FFCRA. As we summarized here, late last week, the Department of Labor issued final “temporary” regulations, exempting certain health care providers from required paid time off and paid leave under FFCRA. The plain language of the FFCRA defined a health care provider as traditionally defined in the FMLA. The Department’s implementing regulations significantly expand that definition, providing that health care provider includes any employee employed “at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy or any similar institution, facility, location or site where medical services provided, that are similar to such institutions.” For a more detailed analysis of the exemption, see Seyfarth’s piece on the same here.

COVID-19 Impacts on Employers Employing Foreign Workers. As we noted in our piece on the original spending bill, H-2B visas are typically capped at 66,000; however, in Early March, DHS announced it would allow an additional 35,000 H2-B visas this year. Despite employers reliance on workers operating under these visas, DHS reversed course, placing a hold on all additional H-2B Visas “due to present economic circumstances.”  The response from the employer world was deafening. Indeed, the opposition to the move garnered its own twitter hashtag – #saveh2b. Additionally, today, the DOL Office of Labor Certification issued its third round of guidance related to questions on the pandemic’s effect on certified Labor Condition Applications. For example, the guidance provides employers “may place an H-1B worker at a new worksite located outside of the area(s) of intended employment . . . without having to file a new LCA if the employer meets the conditions in the H-1B regulations at 20 CFR 655.735”. On a related note, Seyfarth has detailed the numerous travel and immigration restrictions across the globe.

Albany, and other State Capitols, Either Pause or Work Remotely Due to COVID-19. New York, so often the bellwether state for COVID-19 responses, has positioned itself to continue operations remotely (see Assembly Resolution, Senate Resolution), permitting remote voting and assembly for the term of the declared emergency. Additionally, the Speaker of the Assembly, Carl Heastie, stated in a press release at the end of March that “During these extraordinary circumstances, it is critical that the People’s House is able to continue to do the people’s work.” Similarly, on March 20, both chambers of the 120-member New Jersey State Legislature met in person and passed a resolution that allowed it and other public bodies to cast votes electronically and remotely during periods of emergency. Pennsylvania and Utah’s legislatures have already authorized remote meetings and voting. Arkansas lawmakers met in a 5,600-seat basketball arena to ensure they could stay far away from each other and not spread the virus. In California, where the legislative landscape is perhaps the least employer-friendly, lawmakers will not return to Sacramento on the originally-planned date of April 13; instead, legislative leaders announced they planned to reconvene on May 4. The extended legislative absence in California may not be bad news for employers.

NYC Mandatory Paid Personal Time Bill Likely to be Shelved. As it ravages the five boroughs, COVID-19 is forcing NYC Mayor Bill de Blasio to slash the municipal budget he’s relied on to accomplish his checklist of employee-friendly policy goals. The Mayor’s once highly touted paid vacation mandate for private-sector workers is likely the first policy casualty of the pandemic. As explored in depth by Seyfarth, in what would have been a trailblazing step for municipalities across the country, the NYC Council bill would have imposed even greater substantive burdens on NYC employers by allowing covered employees to accrue one hour of personal time for every 30 hours worked, up to 80 hours of personal time per calendar year. Andrew Rigie, executive director of the NYC Hospitality Alliance, for one, is glad to see the proposal slashed. The Alliance calculated the proposed mandate would cost private enterprise citywide a total of $1.2 billion. Jennifer Fermino, spokesperson for Speaker of the New York City Council, would not specifically address the fate of the bill, opting instead to reiterate the Council is concerned with “providing relief” for businesses in need.