Seyfarth Policy Matters Newsletter - June 26, 2020

Despite Big SCOTUS Win For Dreamers, President Trump Continues to Restrict Immigration Through Executive Action.  As we noted here, just last week, SCOTUS issued its opinion in Department of Homeland Security v. Regents of Univ. of Cal.  The high Court held that the government’s decision to terminate the DACA program violated the procedural requirements prescribed under the Administrative Procedure Act. Shortly after the decision came down, President Trump issued a Proclamation suspending entry of aliens the Administration considers a risk to the U.S. labor market following the Coronavirus outbreak. The Proclamation is an extension of Proclamation 10014 of April 22, 2020, which temporarily suspended the entry of certain employment-based, family-based and other immigrants, through December 31, 2020. Seyfarth issued a helpful analysis of that measure here. In addition to extending the previous Proclamation, and most relevant for U.S. employers, the measure also restricts entry of H-1B and H-2B nonimmigrants; L-1A executives and managers; L-1B specialized knowledge workers; J-1 interns, trainees, teachers, camp counselors, au pairs and Summer Work Travel participants; and their dependent spouses and children. Certain exemptions are recognized but exactly how these will be defined or made available is unclear. Seyfarth published a helpful analysis here. Additionally, Seyfarth issued a more comprehensive summary in question and answer format here.

Tri-State Governors Advise Self-Quarantine for Arrivals from Coronavirus Hot States.  On Wednesday, Governors Andrew M. Cuomo (NY), Phil Murphy (NJ) and Ned Lamont (CT) announced a joint incoming travel advisory that all individuals traveling from states with significant community spread of COVID-19 — including those traveling for business — must quarantine for a 14-day period from the time of last contact within the identified state. Later that day, Gov. Cuomo issued Executive Order No. 205, requiring all “travelers entering New York from a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average,” to “quarantine for a period of 14 days consistent with Department of Health regulations for quarantine.” Similarly, on Wednesday evening, Gov. Lamont issued Executive Order No. 7BBB, which mandates a 14-day self-quarantine for travelers from states experiencing high infection rates. The Order does, however, permit “free travel between and among the [three] states.” While Governor Murphy has not yet issued an official EO, he posted the joint travel advisory to Twitter. The states considered “hot spots” effectively include Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah, as of June 24, 2020. The tri-state measure will use uniform parameters and messaging on highways, airports, websites and social media across the three states. While Connecticut is not planning to impose any punitive measures for non-compliance, New York’s EO notes that “non-compliance may be deemed a  . . . violation subject to a civil penalty of up to $10,000.” The EOs also allow the relevant agencies to make exceptions for essential workers and for “other extraordinary circumstances” when quarantine is not possible.

As COVID-19 Continues to Spike, Jurisdictions Are Pressing Pause on Reopening Plans.  Today, Texas joined the chorus of jurisdictions slowing plans to reopen due to the recent spike in COVID-19, particularly throughout the South and Southwest. Alabama, Missouri, Montana and Utah all hit new daily case records on Thursday. As cases climbed in more than half the states on Thursday, the Labor Department reported that nearly 1.5 million workers filed new unemployment claims last week. Texas joined states like North Carolina in hitting pause on reopening plans. Even in Florida, Governor Ron DeSantis stated he will not move into the next phase of reopening given the COVID-19 crises that state is facing. Despite the bleary picture most states face, the DOL issued additional Return-to-Work, COVID-testing guidance for health plans. The guidance can be found here; Seyfarth published a helpful analysis of the same here. Bottom line — things are not great on the COVID-19 front, and we all must remain vigilant in adhering to federal, local and state guidelines. Stay tuned to this space for additional updates.

Not Only Are States Pausing Reopening, They Are Also “Requiring” Masks.  The Lone Star State this week not only joined the chorus of jurisdictions pausing reopening, but many jurisdictions within the state are also now requiring and / or encouraging customers and employees to don a face covering or face civil penalties. The new requirement comes by way of dictate by county, without interference from Governor Abbot. Texas joins California, Connecticut,  Louisiana, and almost every other state in either requiring or encouraging some kind of face coverings. On the Federal level, as Seyfarth noted here, the CDC recommends face covering in public setting and OSHA generally recommends employers encourage workers to wear face coverings at work.

House Education and Labor Committee Holds Hearing on Inequities Amplified by COVID-19.  On Monday, the Committee held a hearing entitled: “Inequities Exposed: How COVID-19 Widened Racial Inequities in Education, Health, and the Workforce.” The committee accepted testimony from Ms. Camara P. Jones, M.D., Ms. Valerie Rawlston Wilson, Ph.D., Mr. Avik Roy from the Foundation for Research on Equal Opportunity, and Mr. John B. King, Jr. of The Education Trust Washington. In his opening statement, Chair Robert. C. “Bobby” Scott noted the many ways in which the pandemic has disproportionately affected people of color. The Chairman took the opportunity to explain how the House-passed HEROES Act — which Seyfarth analyzed here — could help reduce this disparity. The Chairman also opined that the Affordable Care Act is instrumental in supporting people of color during the pandemic. It is not a coincidence that the Democrat Chair offered his view on the ACA while the Trump Administration is, again, pressuring SCOTUS to overturn the ACA in its entirety.

Brewing Storm of Litigation Approaching New Jersey Should COVID-19 Presumption Bill Pass Assembly.  With COVID-19 employment litigation just starting to heat up in the Garden State, a bill that passed the Senate on May 14 and is currently sitting in the Assembly, would  bolster claims by “essential employees” who contract COVID-19 and who seek to collect workers’ compensation. The bill passed with semi-bipartisan support as 24 Democrats and 3 Republicans submitted a “yea” vote. As we previously reported, Bill Nos. S2380/A3999 would create a rebuttable presumption that the contraction of COVID-19 by an essential employee is work-related for purposes of collecting workers’ compensation. The presumption essentially means that the burden of proof shifts to the employer to establish “by a preponderance of the evidence” that the employee “was not exposed to the disease.” Additionally, while some employers wrongly believe that having their employees sign COVID-19 liability waivers expunges them from responsibility, the passage of this bill would lay that belief to rest, at least for essential employees.

The DOL Limits Liquidated Damages in FLSA Actions. Huzzah!  This week, the Wage and Hour Division of the DOL announced that it would no longer seek “double damages” in FLSA actions where there’s no clear evidence of bad faith and willfulness, or if the employer has no prior history of violations, among other qualifying reasons. The announcement followed on the heels of an executive order President Trump signed last month directing agencies to use deregulatory actions to help spur economic recovery. The latter seemingly sparked the former. Seyfarth provided useful commentary on the announcement, which can be found here.

New York Legislature Aims to Expand State’s WARN Act Notice Requirements.  Prior to the COVID-19 pandemic outbreak in mid-March of this year, the New York legislature was considering a variety of bills on an almost daily basis. One of the bills, S7344, was introduced on January 14 into the state Senate and advanced to its third reading on February 10. It has lain dormant since then. The bill would require employers with WARN Act notice obligations to notify affected communities and school districts, in addition to the existing requirement to notify employees, the Department of Labor, and local workforce investment boards, to ensure that these communities are aware of mass layoffs, plant closings, and major relocations. According to the bill Sponsor Memo, the genesis of the bill lay in the problems caused by the sudden closure of the Doral Arrowwood resort in Westchester County, NY. The surrounding communities, which were financially tied to the resort, were blindsided when they learned of the closure in the press. This past Wednesday, the initiative to expand the NY WARN notice requirements gained some life again as Democrat Assemblyman Steven Otis introduced a sister bill, A10674, into the Assembly, along with the self-same Sponsor Memo. Stay tuned to this space for updates!

 

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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.