Seyfarth Policy Matters Newsletter - July 2, 2020

Happy 4th!  While we continue to track policy that matters, we would be remiss if we did not wish all of our readers, and of course the Nation itself, a Happy Independence Day. The tradition of Independence Day celebrations date back to the 18th century and the American Revolution. On July 2nd, 1776, the Continental Congress voted in favor of independence, and two days later delegates from the 13 colonies adopted the Declaration of Independence. As an interesting aside, one of the most famous founding fathers, John Adams, believed resolutely that July 2nd was the correct date on which to celebrate the birth of American independence, and would reportedly turn down invitations to appear at July 4th events in protest. Also an interesting little anecdote, Adams and Thomas Jefferson both died on July 4, 1826—the 50th anniversary of the adoption of the Declaration of Independence. We here at PMN hope you have a happy and safe Fourth of July and tune back in next week for more policy that matters.

Things Don’t Look Good on the COVID-19 Front, and It Is Hurting Businesses.  Numerous businesses that celebrated the “re-opening” of our economy with a grand re-opening are being forced to once again let workers go as they shudder their doors amidst a devastating spike in COVID-19 cases. Some municipalities – see e.g., San Francisco – have passed ordinances that require many businesses across San Francisco to offer reemployment to employees previously laid off due to the COVID-19 pandemic. Many states and localities are seeing the highest reports of known cases since the onset of the pandemic. The spike is particularly painful in the South and the West. Indeed, Tuesday saw the Nation’s biggest one-day spike of the virus. Arizona, which has seen one of the worst increases in COVID-19 cases, has ordered bars and gyms to close.  As Californians prepare plans for the 4th of July Holiday, Governor Newsom ordered a three-week closure of bars and indoor operations of restaurants and certain other businesses in 19 counties. Restaurants, and many other businesses, are now forced to close once again after re-opening their doors, and the second iteration is causing a particularly large dent in bottom lines. Even ubiquitous Apple Corporation is not immune from the economic damage the spike is causing.

Court Holding Spells Relief for NLRB.  As we noted here, the AFL-CIO asked the D.C. District Court to issue a preliminary injunction enjoining the recently issued NLRB election rules, both on APA procedural and substantive grounds.  By way of background, in December 2019, the NLRB issued a final rule to revise union election procedures without first releasing a proposed version for public comment, as the Administrative Procedure Act (APA) typically requires. The Rule would extend some procedural deadlines and provides employers more opportunity to challenge the process. In March, as Seyfarth noted here, the nation’s largest labor group, the AFL-CIO, sued the NLRB, insisting the District Court for DC should strike down the final rule for violating the APA. Yesterday, Judge Jackson issued her holding, siding with the NLRB’s position that the new rule does not violate the APA.  Judge Jackson explained that “[t]his policy decision was entirely the NLRB's to make, and the record establishes that the Board exercised its discretion with relevant information in hand and with eyes wide open concerning the impact of the significant changes that it was adopting.” According to NLRB chairman John F. Ring, “[t]he court concluded the Board’s Rule was the product of reasoned decision making and issued in full compliance with . . . the Administrative Procedure Act” and “the Board is confident that all provisions of its Election Procedures Rule will eventually be upheld on appeal and put into full effect as soon as possible.”

Tri-State’s List of “Hot States” Doubles.  New York, New Jersey and Connecticut announced on Tuesday (Cuomo, Murphy, Lamont) that they’ve added travelers from eight other states, doubling the original list of eight states included in the joint incoming Travel Advisory issued last week. California, Georgia, Iowa, Idaho, Louisiana, Mississippi, Nevada and Tennessee were added as they have met the metrics to qualify for the Travel Advisory. Travelers from the effected states will now have to isolate for 14 days upon arriving in the three northeastern states. While New York, New Jersey, and Connecticut all have statewide Paid Sick Leave laws either in effect or scheduled to go into effect in the coming months, New York is the only state to have a separate COVID-19 emergency paid sick leave law in effect at this time. Before the current quarantine order, the New York law provided that employees would not be eligible for paid leave if they voluntarily travel to a country for which the Centers for Disease Control and Prevention has a level two or three travel health notice. Governor Cuomo signed another order, Executive Order 202.45, last Friday providing that employees will be similarly ineligible for paid sick leave under the statute if they voluntarily travel to one of the affected states as well. For more, see Seyfarth’s full Legal Update.

Congress Passes or Begins Debate on a Flurry of Legislation.  This week, with the backdrop of  COVID-19 cases increasing across the Nation, Congress has been busy passing legislation intended to ameliorate some of the pain the pandemic has caused. In these times, with this Administration, COVID-19 legislation has typically started at the House of Representatives. This week, in somewhat of a surprise move, the Senate raced ahead of the House, passing legislation authored by Senator Coons (D-DE) via unanimous consent to extend the controversial PPP forgivable loan program, which still has $130 Million left unallocated. On Wednesday evening, the House passed the same measure. It is now on its way to President Trump’s desk for either signature or veto. At the same time, the House passed a massive $1.5 Trillion infrastructure deal, the Moving Forward Act, which pours billions into bridge repairs, low-income education, affordable housing, and internet access, and includes a slew of provisions aimed at climate change, such as provisions for clean energy storage. On a somewhat related note, California has introduced its own energy-storage legislation, AB 1720, to combat climate change. 

NJ State Senator Rolls Out Slate of COVID-19-Related Bills and Resolutions.  New Jersey State Senator Vin Gopal (D) introduced 14 bills over the past two weeks on issues ranging from alcoholic beverage liability insurance to remote bingo. In the swirl of concern among employers as to COVID-19 liability, one of Gopal’s bills stands apart. Bill No. S2634, introduced on Monday, seeks to grant legal immunity to businesses that reopen during the pandemic. Businesses “shall not be liable in any civil action, or subject to any administrative proceeding . . . for any act of commission or omission resulting in damages arising from a person’s exposure to SARS CoV-2.” See Bill at §1(a). “College presidents warned in May that without a bill like this, they would be unwilling or unable to open their campuses.” The bill was introduced two days ahead of the effective date of Governor Phil Murphy’s Executive Order No. 155, which allowed for limited in-person instruction at institutions of higher education beginning July 1. The immunity, while not absolute, doesn’t have a high threshold—it applies where the business “in good faith reasonably compl[ies] with or exceed[s] applicable health and safety measures to prevent or mitigate a person’s exposure to the virus.” See Bill at §1(a). The bill comes on the heels of passage by the N.J. Senate of Bill No. S2380 in May, which would create a rebuttable presumption that the contraction of COVID-19 by an essential employee is work-related for purposes of collecting workers’ compensation, as we discussed previously here and here.

Mitch McConnell Pledges to Address COVID-19 Through Additional Legislation.  Despite previous hesitation from both the Senate and the Administration to pursue additional COVID-19 legislation, Senate Majority Leader Mitch McConnell (R-KY) announced this week that the Senate will begin crafting additional COVID-19 relief legislation upon return to D.C. after the Independence Day holiday, and plan to be done before leaving town for the long August break. What that legislation will look like is hard to predict, but it will presumably contain some of the provisions in the HEROES Act, which Seyfarth detailed here. Also this week, Senate Minority Leader Chuck Schumer (D-NY) and Sen. Ron Wyden (D-ORE ) introduced legislation that would tie enhanced unemployment benefits to joblessness levels in each state, the most prominent effort yet to expand federal policies that kick in automatically during a recession. Under the bill, the additional $600 a week that jobless workers have been receiving during this economic crisis would be phased out as each state’s unemployment rate drops below 11 percent.

When Bad Dreams Become Reality: Slew of Pro-Employee Legislation in Virginia Goes Live.  As Seyfarth noted here, here, here, and here since the Democratic party scored a hat trick – House, Senate and Governor – the Commonwealth’s legislature has been busy passing additional, state-wide obligations upon employers. Today, all those measures officially take effect. Thankfully, Seyfarth has issued a comprehensive summary of those measures here.

NYC Faces Off Against Unions as City Council Passes $88.19 Billion Budget.  The New York City Council approved an $88.19 billion budget minutes after the midnight deadline Wednesday. The City’s spending plan essentially shrunk from $95.3 billion in January to the $88.19 billion that was approved on Wednesday. To balance spending, Mayor de Blasio penciled in $1 billion in reductions from labor contracts that have yet to be negotiated. De Blasio dug his heels in, commenting: “And I want to be very clear, we're going to get to work with our labor unions to find that billion dollars. We're going to keep working on trying to get that stimulus in Washington, that borrowing authority in Albany. But if we cannot find a way, then October 1st looms as the day we would have to put into effect layoffs,” which, in the Mayor’s words, are “the equivalent of 22,000 City employees.” Both the Municipal Labor Committee, the organization that facilitates collective bargaining with NYC, and the United Federation of Teachers, derided the layoff proposal. The budget passage follows weeks of unsuccessful pleas from de Blasio and Governor Cuomo to assist states that are reeling from the economic effects of the coronavirus pandemic. To date, President Trump and Senate Republicans have rejected the calls.

 

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The Policy Matters newsletter is a publication of Seyfarth's Government Relations & Policy Practice and is authored by Randy Johnson and Scott Mallery. Randy Johnson is a Partner in Seyfarth's Washington, DC office and chairs the firm's Government Relations & Policy Practice Group (GRPG); Scott Mallery is Counsel in Seyfarth's Sacramento, CA office.