Seyfarth Policy Matters Newsletter - June 22, 2020

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SCOTUS Drops Decisions of Import to Employers.   As you may have heard, last week, the Supreme Court of the United States announced decisions in Department of Homeland Security v. Regents of Univ. of Cal., and Bostock v. Clayton County, Georgia. In the former, SCOTUS held, with the Majority opinion written by Justice Roberts, that the government’s decision to terminate the DACA program, which allowed certain undocumented young people brought to this country as children to apply for protection from deportation and for work authorization, violated the procedural requirements prescribed under the Administrative Procedure Act.  In the latter, SCOTUS held, in a Majority opinion penned by Justice Gorsuch, that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Seyfarth published analyses of both decisions here and here.

Potential Reverberations of the DACA Decision.   SCOTUS’ Opinion, it is important to note, left a trail of procedural breadcrumbs and suggestions for reasoned decision-making, which the Trump administration could theoretically follow fairly quickly. However, even if it did so, the result would be challenged and likely hung up in the courts until long after the upcoming election. Congress has, therefore, been taken off of the” hot seat” to address the program, which would have no doubt enveloped the entire broader, comprehensive immigration reform debate. Many on the Hill are breathing a sigh of relief over the Court’s decision. Further, it is worth noting Justices Thomas’s dissent, page 3, second paragraph, where he notes that this decision will make it much more difficult for succeeding administrations to reverse executive actions by prior administrations. This may have far-reaching consequences down the road, whether in the immigration area or beyond.

Potential Hill Reverberations of the Bostock Decision.  Similarly, the result in Bostock takes pressure off the Congress to take up the Equality Act, H.R. 5, which would have amended Title VII to provide the applicable rights but also swept much more broadly to include other civil rights laws. While there’s been some talk by the left of pressing forward with H.R. 5 to address these other areas, this would seem unlikely now that the employment coverage question has been addressed.  Although passed by the House with broad business community support, the bill still faced major headwinds.  Certainly, now there is also no reason to proceed with the previously negotiated Employment Non-Discrimination Act, otherwise known as ENDA. Seyfarth had played a pivotal role in the development of the legislation, supplying commentary and Congressional testimony on the issue as far back as 2012, and providing testimony at the House Civil Rights and Human Services Subcommittee’s hearing on H.R. 5  as recently as 2019.     

OSHA and EEOC Issue Additional Re-Opening Guidance as COVID-19 Cases Spike.  The Coronavirus is not gone, and that is not great news for employers. Indeed, the curves are trending up, spiking across not only the U.S., but also the globe. Regardless, the nation is pressing forward to reopen the economy. To that end, on Thursday, OSHA issued a lengthy guidance document on safely reopening “non-essential businesses” during the evolving COVID-19 pandemic.  OSHA advises opening in three stages, depending on the level of risk, and advises reading the document in conjunction with HHS’ Guidance on Preparing Workplaces for COVID-19 and the White House Guidelines for Opening up America Again, which Seyfarth analyzed here. As Seyfarth noted here, the EEOC previously stated that testing employees does not violate the ADA. However, in somewhat of an about face, last week, the EEOC proclaimed that the ADA does not allow employers to require antibody testing before allowing employees to re-enter the workplace. Notable, antibody testing is different than viral testing, and may still be permissible under the ADA.

New York City Enters Phase II and New Jersey Deepens Its Stage 2 Reopening.  Today marks the commencement of Phase II for the five boroughs of the City of New York, as up to 350,000 more people are expected to return to work, on top of the hundreds of thousands who already returned when it entered Phase I. Gov. Andrew Cuomo announced on Friday during his final daily COVID-19 briefing after 111 straight days, that global public health experts have cleared the City to enter Phase II. Phase II allows for reopening of outdoor dining at bars and restaurants, in-person retail, hair salons and barbershops, real estate and more office jobs, all at half capacity and with mandatory COVID-19 safeguards in place like social distancing and facial coverings. NYC Mayor Bill de Blasio issued Executive Order No. 126 on Thursday in preparation for Phase II, directing the Department of Transportation (DOT) to establish and administer a program to expand seating options for restaurants, bars and other establishments in certain outdoor areas. The DOT program is known as the "Open Restaurants Program” and the application to enroll in the program may be found here. The Order suspends a limited number of administrative regulations (e.g. Zoning Code, Fire Code) related to commercial activity on sidewalks, as well as a regulation “relating to the prohibition of the consumption of alcohol on streets.” See Order at §2(a). Gov. Cuomo issued a similar Executive Order relating to restaurants and sidewalk liquor consumption on June 6. Seyfarth attorneys recently published a Legal Update, providing guidance to businesses as they re-open. For example, before reopening, every business must meet specific mandatory requirements (see e.g., food service guidelines; personal care services guidelines) and are required to submit an affirmation to the state confirming that they have read and agree to operate in compliance with the detailed guidance. Meanwhile, in New Jersey, which entered Stage 2 of its re-opening last week, Gov. Phil Murphy signed Executive Order No. 154 on June 13 allowing beauty salons, tattoo and massage parlors, personal care services, and non-contact team sports to commence today. See also and NJDCA Administrative Order 2020-09. Along the same lines, NJ Attorney General Gurbir Grewal released guidance last Tuesday for today’s reopening. The Governor also set a date last week for the long-awaited reopening of indoor shopping malls. Those are set to return June 29 with restrictions.

Speaking of Cases Spiking, Where is the Next COVID-19 Relief Package?  Congress is being thrown a lot right now – we are in the midst of a national uproar over racial injustice that demands a legislative response, we are in the midst of a pandemic that is spiking across the world, and, lost in all of this, we are in the midst of one of the most consequential elections in a generation. Still, American citizens are unemployed and struggling, and the economy is struggling. To that end, President Trump is seeking a legislative response to the tune of another $2 Trillion. A payroll tax cut tops the President’s wish list. Senator McConnell prefers the next relief package to cost about $1 Trillion; as we noted here, the House has already passed a $3 Trillion relief package. The White House has stated that the odds of a phase four package passing Congress before August “are very, very high.” With the three major legislative stakeholders sitting $1 Trillion apart, where the negotiations lead will be exceedingly interesting, especially with a presidential election around the corner. Stay tuned to this space.

Still Essential: New Jersey Assembly Bill Gives Wide Discretion to Essential Employees.  Even as New Jersey enters Stage 2 of its reopening, lawmakers are bent on further protecting the rights of the state’s essential workers. Last Monday, New Jersey Assemblywoman Valerie Vainieri Huttle (D) introduced Bill No. A4268, which would permit essential employees, under certain circumstances, to refuse to work during a public health emergency. The bill outlines no fewer than eight circumstances that would make an employee’s decision reasonable, including, for example, where an employer “[p]ressures an employee to work when the worker is sick or fails to require an exposed employee to quarantine . . . .” or where the employer “[r]efuses to establish and enforce policies and practices that promote flexible worksites, such as telecommuting, and flexible work hours.” The bill also outlines the grievance process for a disgruntled employee, and notes that the “Department of Labor and Workforce Development shall develop standards by which to determine whether, under the circumstances, an employee’s decision to refuse to work onsite is reasonable.” The bill’s only co-sponsor at this point is Assemblyman Robert Karabinchak (D) and was referred to the Assembly Labor Committee.

 

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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.