Seyfarth Policy Matters Newsletter - May 15, 2020

House Phase Four COVID-19 Relief Package Sheds Additional Light on Dem Priorities; Package Expected to Pass House Today on Partisan Basis. On Tuesday, Nancy Pelosi unveiled the details of a $3 trillion COVID-19 relief package the House is expected to pass on Friday. Apart from appropriating more dollars into already existing relief programs, the 1,815-page bill would provide states and local governments nearly $1 trillion that could be used to replace predicted revenue shortfalls. It includes $540 billion for states, territories and tribes, in addition to $375 billion for cities, counties, and local governments. The legislation also includes an array of Democratic priorities left out of previous bills, including $75 billion for mortgage relief and $100 billion in assistance for renters, $25 billion for the US Postal Service and $3.6 billion to shore up elections. According to a House summary, the proposal would also appropriate $90 billion in grants to governors to distribute among K-12 schools and public colleges; $10 billion is set aside to address disruption in higher education, including $1.7 billion earmarked specifically for historically black colleges; $1.5 billion to cover water bills; a moratorium on utility service shutoffs. While the measure reveals Democratic priorities, it is unlikely to see the light of day in the Senate. Moreover, the White House already stated it will veto the measure. Unlike previous relief proposals, this measure did not come after weeks of negotiations between the administration, House leaders, and Senate leaders; instead, this measure appears to be a leverage ploy by Democrats in advance of further negotiations with Republicans. For a focus on the employment provisions of the measure, see Seyfarth’s analysis here.

Senate Holds First Hearing on Scope of Potential Liability Shield. On Tuesday, the Senate Committee on the Judiciary held a hearing examining liability during the pandemic. Specifically, the issue at front and center was what level of conduct would be needed for entities to avail themselves of a potential liability shield, and how to define that conduct. In his opening statement, Senator Lindsay Graham stressed the needs of the labor and the business communities to work together to balance the need to make sure that bad actors don’t skate free, with the need to provide some modicum of protection to those trying to safely reopen their businesses. Senator Graham also praised Senator Cornyn’s efforts to draft such a measure.

States Across the Nation Begin Return to Work. In New York, Governor Cuomo recently announced that four regions of New York State are ready to begin reopening this Saturday, May 15. The four regions would be allowed to restart certain industries, including construction, manufacturing, retail for curbside pickup and drop-off or in-store pickup, among others. An online dashboard was also debuted out this week that tracks how each region is faring with regard to meeting the seven health metrics. In addition, the Governor’s Office has produced a 51-page booklet called “NY Forward” that serves as a guide for the public and local officials who are navigating the re-opening process. In New Jersey on Wednesday, Governor Phil Murphy issued Executive Order No. 142, permitting resumption of non-essential construction, curbside pickup at non-essential retail businesses as long as social distancing measures and mask use (“cloth face coverings”) continue, and also permits gatherings in cars. Businesses are responsible for providing face coverings and gloves to employees, and if a visitor refuses to wear a face covering (for non-medical reasons), “then the business must decline entry to the individual.” On the opposite coast, Governor Newsom issued an executive order officially moving California into Phase Two of its reopening, which allows some non-essential business to reopen for curbside pickup, as long as social distancing protocol can be followed. Importantly, counties can move more quickly through Stage 2 if they attest that they meet the state’s readiness criteria. To date, 18 California counties with low COVID-19 cases have received the approval.

DOL Adds Five Additional Q&A Guidance Related to Areas of Concern to Employers. On Tuesday, May 12, the DOL published new Q&As 89-93 as additional guidance regarding the FFCRA and its application to temporary workers, joint employers, teleworkers, childcare needs, and other issues. Given we are on the verge of summer, the DOL explains that leave under the FFCRA is not available simply because school is closed for the summer or any other non-COVID-19 related reason; however, employees are entitled to leave if their childcare provider or summer camp program are not available for a COVID-19 related reason. The guidance is too lengthy and diverse for a comprehensive summary in this space, but can be located here.

New York Continues to Litigate Claim that FFCRA Regulations Are Too Employer-Friendly. In our April 23 newsletter, we discussed the complaint filed by the State of New York (“NYS”) against the U.S. Department of Labor (“DOL”), challenging the legality of the FFCRA’s implementing regulations, promulgated by the DOL. Following the filing, NYS moved for summary judgment. Seyfarth recently conducted an analysis of the claims in the complaint and opined as to their merits, which can be found here. On April 28, the DOL submitted a Motion to Dismiss for Lack of Jurisdiction and a cross motion for Summary Judgment, supported by their Memorandum of Law. The DOL claims protection under the Chevron deference principle, which compels federal courts to defer to a federal agency's interpretation of an ambiguous statute that Congress delegated to the agency to administer. The DOL also bolstered its interpretation of the statute using several canons of statutory construction. Oral arguments were held remotely on Tuesday. Stay tuned for the decision!

Who Cares About the Feds? Alabama and North Carolina Move Forward with State-Wide Liability Shield. As we noted here, Congress is in the midst of a partisan battle over a congressionally mandated liability shield. Indeed, 21 State Attorneys General have penned a letter urging Congress to pass such liability protections. With this fight in the Capitol Hill backdrop, North Carolina passed the COVID-19 Recovery Act, part of which provides that certain businesses will be protected against potential civil claims from customers and employees for injuries or death purportedly attributable to COVID-19. The “liability shield” applies only to the following North Carolina employers: essential businesses, emergency response entities, health care facilities, health care providers, and health care services. The State of Alabama apparently took note, as Governor Ivey recently issued an executive order purporting to protect physicians, their staff, and their practices from lawsuits related to COVID-19. It is unclear what practical or preemptive effect such an executive order will have on an Alabama court adjudicating a negligence claim—thankfully, Seyfarth explored this issue in more depth here.

Let Them Smoke: Most New York City Employers Now Prohibited from Conducting Pre-Employment Marijuana Tests. Effective this past Sunday, it is now an unlawful employment practice in New York City for an employer to require a job applicant to submit to a marijuana test as a condition of employment. By way of background, more than a year ago, the New York City Council passed (by a 41-4 vote) a bill (Intro. No. 1445-A) banning such testing. Because Mayor Bill de Blasio did not sign or veto the bill within 30 days of its passage, it became law on May 10, 2019. The bill stipulates that, generally speaking, companies in NYC can’t conduct pre-employment tests for tetrahydrocannabinols (THC) or marijuana in the prospective employee’s system as a condition of employment unless the position is safety sensitive (e.g. law enforcement, construction jobs). On April 16, 2020, the NYC Commission on Human Rights held a hearing to consider proposed rules to clarify certain exceptions. To see Seyfarth’s legal update on the new law and what it means for employers, click here.

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