Seyfarth Policy Matters Newsletter - September 2020

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[co-author: Samuel Sroka]

Additional Stimulus Negotiations — Along With A Long-Awaited Federal Liability Shield — Are Going Nowhere, Fast. The negotiations for a new stimulus before August failed. The stakeholders promised a negotiated stimulus package this month. Once again, negotiations are in a tailspin. The parties have traded barbs on the status of the negotiation at such a dizzying pace, we doubt whether any kind of much-needed relief will come out of Capitol Hill anytime in the near future. Specifically, four days ago, White House Chief of Staff Mark Meadows came out swinging on NBC’s Meet the Press, pledging to cease any future negotiations after raising the Republican offer from $1 to $1.3 trillion, pushing the blame for the current impasse on Speaker Nancy Pelosi’s alleged intransigence. According to Democratic congressman Gerry Connolly of Virginia, however, Meadows is the only variable different from previous negotiations, and thus should be held to account for the lack of another round of stimulus. Regardless of who is to blame, the nation remains without additional stimulus, and employers from Portland, Maine to Southern California remain unprotected from COVID-19 lawsuits.

Where The Feds Fall Short, States Fill Some Gaps. Absent the once-promised stimulus package, where do we stand on a liability shield? In the first instance, some legal doctrines already exist to protect employers faced with COVID-19 litigation, which Seyfarth wrote about here. Additionally, however, given the dearth of federal legislation, numerous states have passed their own liability shields, with differing levels of protection, ranging from protections for only certain sectors, such as health care providers, to a much broader sort of premises liability protection extended to businesses as long as they substantially comply with COVID-19 federal, state, or local procedures. The Seyfarth Team, led by Honore Hishamunda, put together a fantastic compendium of states that have passed some kind of liability shield. While state attempts to “fill in the gaps” left by the Feds are commendable, it is simply no substitute for a broad federal standard, let alone an exclusively federal COVID-19-related claim, as Senate Republicans proposed a month ago. The gulf between the Senate Proposal, and the House-passed HEROES Act -- which we wrote about here -- has proven empirically too wide. That each law differs from state to state in a manner that leaves employers vulnerable to differing rules and regulations related to COVID-19 liability across their respective sovereign boundaries is, to say the least, not ideal.

US Department of Labor Preparing Revised COVID-19 Paid-Leave Rule Following Rare Defeat in Court. We here at PMN have been closely following the fate of a lawsuit filed by the State of New York against the U.S. Department of Labor (“DOL”), challenging the legality of the FFCRA’s implementing regulations, promulgated by the DOL. Seyfarth’s initial analysis of the lawsuit can be found here. On August 3, District Judge J. Paul Oetken issued a decision vacating certain aspects of the DOL’s regulations on the FFCRA. In issuing its decision, the court responded to competing motions for summary judgment, and generally aligned with the State’s position on the disputed issues. Seyfarth’s analysis of the decision can be found here. Now, the Wage & Hour Division of the DOL is hard at work in attempting to revise and rework the emergency regulation. The new rule would serve as the Trump administration’s first public response to Judge Oetken’s decision.

The Administration’s Payroll Tax Cut Continues To Stir Controversy: Is It Worth It? The President’s payroll tax cut, which we wrote about here, floats to the top of the news agenda on a daily basis. Recently, the National Finance Center announced it will begin to implement the Administration’s payroll tax deferral for “all” federal employees who are eligible, without the option of opting out. On the private side of the employer divide, this week, the United States Treasury issued three-page guidance on the payroll tax deferral, reflecting the simplicity of the measure, but not necessarily its saliency. Companies remain circumspect of the deferral as, despite administration promises to the contrary, the guidance does nothing to assuage concerns over whether the tax liability will be forgiven. Indeed, some business consultants are encouraging clients to decline participation in the program.

Trump Moves To Ban Evictions Nationwide Through December. As we noted here, California Supreme Court Chief Justice Cantil-Sakauye recently implored the political branches to act expeditiously to resolve the looming crisis in evictions, foreclosures and homelessness. While this was a plea to the California State Legislature, the issue is similarly salient on a federal level. To that end, the Trump Administration announced Tuesday that it would direct the Centers for Disease Control to ban evictions of tenants who are unable to pay rent because of the coronavirus crisis through the end of the year. Despite some shaky legal footing under the Public Health Service Act of 1944, the CDC heeded the President’s instruction, issuing an order that would potentially impose criminal penalties on landlords who violate the ban. Despite the best of intentions, some questions remain concerning the efficacy of the ban. Regardless, the existence of the order, in itself, evidences both the seriousness of the problem and the Administration’s concern for the same. While nothing has surfaced as of yet, legal challenges are surely being contemplated and drafted concurrently as this Newsletter is published. Stay tuned!

New York Mandatory Paid Sick Leave Law About to Go Live. As we at PMN discussed earlier in the year, and as analyzed by Seyfarth, on April 2, 2020, New York Governor Andrew Cuomo announced that the state budget would include a mandatory paid sick leave (PSL) program. The State Legislature passed the budget immediately thereafter, with the sick leave program going into effect 180 days later. The terminus of that 180-day embargo is almost upon us. On September 30, 2020, New York’s general PSL mandate, expanding beyond the statewide COVID-19 Emergency Leave Law, is scheduled to go into effect. While employers need not permit the use of PSL until January 1, 2021, all other obligations will be in effect come month’s end. As employers begin and/or continue to prepare for compliance with the pending mandate, Seyfarth this week published a comprehensive review of the law’s key provisions, ambiguities, and potential problem areas for employers to monitor for the remainder of the year. We encourage the read!

California’s Marathon COVID-19-Limited Session is Finally Over. In a typical, non-pandemic year, the California Legislature passes hundreds of bills. They did the same this year, but the number of bills passed was drastically reduced by the in-person limitations the pandemic has caused. In general, this is good news for employers — typically, the less legislation that comes out of those legislative chambers the better for employers. Despite the reduced quantity of bills, a number of troubling pieces of legislation did pass and are currently awaiting signature. Seyfarth published a helpful compendium of the measures that were passed along to the Governor, and those that died before seeing Governor Newsom’s desk. Among the most troubling bills — and don’t get us wrong, there are a number of troubling bills — to hit the Executive’s desk is AB 1867, a budget trailer bill effective immediately upon signature (apart from the required sick leave provision, which is effective ten days after signature). While the bill contains a number of provisions, the thrust of the measure would establish COVID-19 supplemental paid sick leave for workers employed by businesses of 500 or more employees. This measure was expressly intended to “fill the gaps” left by the FFCRA. To that end, these provisions would expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act, whichever is later.

Is Georgia Trying to Be The New California? Virginia? Georgia Enacts Legislation Upping Employment Obligations Related to Lactation. Some states are known for setting high legislative bars with respect to employment rights and protections. For example, we have written on the State of Virginia’s recent turn to pro-employee legislation. Earlier this month, Georgia enacted one of among the more stringent lactation break laws in the country. In a move that commands attention from employers throughout the state, and indeed the nation, Georgia ended its permissive approach to lactation breaks with the August 5, 2020 passage of HB 1090, also referred to as “Charlotte’s Law” (named for a teacher whose supervisor would not allow her to pump during a break). The amended law, which is codified under Georgia Code Section 34-1-6, makes several critical changes, including that the opportunity for lactation breaks is now mandatory, not optional. Seyfarth recently published an article about the new law in its Wage and Hour Litigation blog.

On the Radar: Undocumented Immigrants in New Jersey Can Now Legally Obtain Occupational Licenses. On Monday, New Jersey Gov. Phil Murphy signed Bill No. S2455 into law, which effectively removes a legal barrier which has inhibited undocumented immigrants from entering an array of professions, including law, medicine, and dentistry, among others. The right to work would also affect some public sector industries, such as social workers and firefighters. Indeed, there are more than 200 jobs in New Jersey that require a license. The two-line bill states that “lawful presence in the United States shall not be required to obtain a professional or occupational license, provided that the applicant meets all other requirements for licensure,” and that the law “shall take effect immediately.” According to Insider NJ, New Jersey is the first state on the East Coast, and the 15th state nationwide, to remove citizenship or immigration status requirements from occupational licensure. The bill passed both the New Jersey Senate (26-11) and General Assembly (47-26), mainly along party lines.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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