Seyfarth Policy Matters Newsletter - March 19, 2020

President Signs Coronavirus Legislation. Last night, the President signed the "Families First Coronavirus Response Act" (H.R. 6201), which will require employers with less than 500 employees to provide two weeks of paid sick leave for six itemized categories of leave related to the coronavirus crisis. The Act also provides for 10 weeks of paid family and medical leave if the employee is unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider is unavailable due to a public health emergency. Some of the cost of the leave would be reimbursed through tax credits up to certain caps. These provisions are effective 15 days from yesterday and expire on December 31, 2020. Businesses with less than 50 employees could gain an exemption through rulemaking, depending on the type of leave category in question. Enforcement goes through the Department of Labor or a private cause of action, with some unique rules. Special rules cover multi-employer plans. There are many issues of interpretation with the bill, and the Department of Labor, knowing things are moving quickly, is holding a listening session on 10 AM Friday morning in a virtual town hall. Click here to join the webinar. For audio access, dial: 888-791-5525; Participant passcode: 6860607. We invite you to participate and provide your views. There is now some talk that the huge economic stimulus package may include labor provisions which could expand existing employment law and or revisit parts of H.R. 6201. Stay tuned. H.R. 6201 of course also contained many other provisions relating to UI, health care, school lunches and other areas. Just minutes ago, Sen. McConnell introduced the Coronavirus Aid, Relief and Economic Security Act which contains several labor provisions which we will be reviewing. See Title III.

Seyfarth has already held webinars on the new law and will be hosting a firm-wide webinar next Wednesday. Stay tuned for details. For more general information related to the coronavirus, see Seyfarth's COVID-19 Roundup. Hang in there everybody!

Government Agencies Shutter Doors in Light of COVID-19. Hundreds of government institutions have closed their doors to the public. The following federal agencies and institutions, all of which bear importance to the labor and employment world, have implemented restrictive policies to prevent the spread of COVID-19. For example, the NLRB has closed its NYC, Chicago, and Detroit offices; the EEOC first ordered workers in its DC headquarters to work remotely, it has now expanded that dictate to all offices and required, and is now requiring that all EEOC bias charges be filed over the phone; and SCOTUS has continued all oral arguments. In California, for example, the four federal district courts in the state have implemented drastic measures to combat spread of the virus. Additionally, almost every state court in California, including the largest court system in the nation – Los Angeles Superior – have implemented similarly restrictive measures. Indeed the Chief Justice of the California Supreme Court has issued an order suspending oral arguments.  Finally, the Administration has announced that it has reached an agreement with the government of Canada to close the lengthy border between the countries to all non-essential travel. Many other, similarly important institutions have implemented disruptive restrictions to prevent the spread of the virus; this space, however, is too small to mention all of them.

State and Local Responses to COVID-19. On Monday, six bay area counties in California issued shelter in place orders for all residents. New York Governor Andrew Cuomo, despite his antipathy toward the move, issued Executive Order 202.6 that, among other things, required non-essential businesses to reduce their in-person workforce at any work location by 50%. As we discussed here, Governor Murphy of New Jersey signed Executive Order 104, which limits gatherings of persons to 50 persons or fewer, with few exceptions. Following suit, a significant number of states and localities have issued similarly restrictive dictates. The city of Philadelphia limited all commercial activities and issued a halt to all non-essential City government operations. The California Legislature—the bane of many employers—has voted to suspend its 2020 session for nearly a month. Public universities across the country have curtailed academic and operational activities, while many are also requiring remote instruction and testing. The County of San Diego’s Epidemiology department recently joined the fray, issuing an order banning all gatherings of 50 or more persons. Hundreds of state and localities have implemented restrictive measures to prevent spread of the virus; again, this space is not large enough to mention them all.

Mulvaney out, Vought in. President Trump plans to nominate Russell Vought to serve as the permanent director of the Office of Management and Budget (OMB). Vought has held the top spot at the OMB for over a year, while Mick Mulvaney was the acting Chief of Staff. Vought still faces confirmation in the Senate, which, as noted earlier has been very busy crafting its response to the Coronavirus. Now that the COVID-19 response bill has left the Senate chambers, we can expect the Senate to take up his nomination well before the election in November. This is not the first time Vought has faced Senatorial confirmation—the Senate narrowly confirmed Vought as Trump’s deputy OMB director with a 50-49 vote in February 2018.

US’ Largest Labor Union Endorses Joe Biden for President. Before the presidential primary shellacking on Tuesday, March 17, the National Education Association endorsed Joe Biden’s presidential campaign over his last remaining primary rival, Bernie Sanders. While exit polling cannot measure the efficacy of a political endorsement, this one surely did not hurt. Should Joe Biden win the Democratic presidential primary, that union will almost assuredly endorse him over Donald Trump, the presumptive Republican nominee.

Is Virginia the New California? As we recently reported here, employers have long counted on California and New York to annually pass employee friendly legislation. The same could not be said of the Commonwealth of Virginia, but that is changing quickly. A diverse sampling of the measures the Virginia Legislature passed this session include, but are certainly not limited to the following: a new private right of action relating to the “misclassification of workers”; anti-retaliation provisions for reporting misclassification of workers; Virginia will now define discrimination “because of race” to include discrimination because of or based on traits historically associated with race, including hair texture, hair type, and hairstyles such as braids, locks and twists. The Governor now has until April 11, 2020 to approve and sign legislation.