Seyfarth Policy Matters Newsletter - May 2020 #3

Seyfarth Shaw LLP

Non-Essential Retail Begins the Arduous Process of Reopening. As many states and localities are beginning the first phases of reopening, governmental entities across the country are doing their level best to provide as much guidance as possible. As Seyfarth noted here, Massachusetts updated its guidance for retail businesses, which reduces limits on the maximum number of employees permitted on the employer’s premises, but still requires employer to adopt and maintain certain COVID-19 workplace safety rules. Across the country in California, retail business are allowed to reopen, but only if they follow strict safety protocols. The Mayor of Washington D.C. announced the City’s Stay-at-Home order will be lifted today, Friday, May 29, and will begin moving into phase one of reopening. Even the American Industrial Hygiene Association got in the game, issuing its own guidance for reopening retail stores. Retail reopening is obviously not relegated to the U.S. For those interested, a summary of what Canada is doing can be found here.

Push to Protect Businesses, in its Many Forms, Rages On. One of these forms comes by way of Congresswoman Carol Miller (R-WV) and Congressman Henry Cuellar (D-TX), who recently introduced the Helping Gig Economy Workers Act of 2020. Senators Mike Braun (R-IN) and Kelly Loeffler (R-GA) introduced a companion bill in the Senate. Republicans on the House Committee on Education and Labor issued a press release praising the passage of the various COVID-19 relief measures, but noting the dearth of Congressional action to protect businesses that want to provide certain pay and benefits to independent contractors without potentially triggering an employer-employee relationship under federal law. This bill would squarely address that issue by “adopt[ing] protections for companies so they can provide health and safety-related benefits to independent contractors without causing an employer-employee relationship.” This measure sets an important precedent in suggesting that modifications in current law reflecting the new economy are necessary and can be beneficial to all parties.

House Subcommittee Hearing on Worker COVID-19 Protections. On Thursday, the House Subcommittee on Workforce Protections held a hearing entitled “Examining the Federal Government’s Actions to Protect Workers from COVID-19.” Only two witnesses were called to testify: Loren Sweatt, Principal Deputy Assistant Secretary for OSHA, and John Howard, longtime Director of NIOSH. Much of the hearing focused on the Majority’s claim that an emergency temporary standard is necessary to provide adequate mandated protections for workers as distinguished from the Minority’s arguments that guidelines, backed up by the General Duty Clause, are more appropriate in this environment as they can be rapidly changed as differing circumstances and new medical information come to light. You will recall that the AFL-CIO has filed a lawsuit requesting that OSHA be ordered to issue an emergency temporary standard in this area. Given the circumstances, the hearing was relatively well attended. An emergency temporary standard has of course been brought up by Speaker Pelosi specifically several times and was included in the recently passed HEROS Act, Section 120302.

Only the City Remains: New York Edges Closer to Reopening of All Regions. Long Island became the state's latest region to start its reopening process Wednesday, leaving New York City alone on PAUSE and still adhering to the March 20 Executive Order. Governor Andrew Cuomo announced at his press conference on Tuesday that Long Island was slated to enter Phase 1 of its reopening the following day, Wednesday, May 27, the ninth state region to be granted such permission. As we noted in an earlier newsletter, individual industries within New York will re-open in four phases, based on priority. The factors were heavily influenced by guidelines issued last month by the White House, which Seyfarth covered here, and the CDC guidelines. Phase 1 includes manufacturing, construction, agriculture, wholesale trade, and retail stores (for curbside pick-up only). Based on the metrics dashboard, only New York City is left lying fallow. The good news is that of the two metrics NYC hasn’t yet met (“contact tracers 30 per 100,000” and “share of total [hospital] beds available”) the City is expected to meet the former and is only two percentage points shy of meeting the 30% threshold for the latter. According to NYC Mayor Bill de Blasio, “All roads are leading to the first half of June” for a phased reopening to commence. On Thursday, Seyfarth held a webinar entitled, “Return to Business in the New York Metro Area: What Reopening Means for Institutional Building Owners & Investors.”

Did you Notice all the Protests? Parties Continue to Challenge the Constitutionality of PPP Loan Restrictions, “Stay at Home” Orders, and Gathering Restrictions. There have been numerous challenges in numerous courts to the constitutionality of the numerous restrictions put in place by numerous governmental agencies in the battle against COVID-19. The decision of the Wisconsin Supreme Court striking down the state’s stay-at-home order has received by far the most media attention — perhaps due to its status as an outlier. Indeed, as we noted here, and more recently here, the vast majority of courts to hear challenges to stay-at-home orders, PPP loan restrictions, and gathering restrictions have upheld the governmental restrictions as valid uses of governmental authority during a Pandemic.

Time is Running Out on NYC’s Essential Workers Bill of Rights. The series of bills pending a vote in the NYC Council known informally as the “Essential Workers Bill of Rights” — which have been analyzed in-depth by Seyfarth — are close to moot. The Council has yet to schedule a vote on the bill package, which would expand sick leave, mandate hazard pay and offer whistleblower protections to essential employees. Should NYC reopen, that would make some parts of the package, which is meant specifically for those working while the rest of the city is shut down, inapplicable. A hotly contested proposal, Int. No. 1918, introduced by Laurie Cumbo (D), would require businesses with 100 or more employees to pay non-salaried essential workers a premium, has been praised by some essential-workers advocates while simultaneously expressing worry that passage would indeed be disastrous without funding from the federal or state government. According to CityLimits, Counsel for the Save New York City Home Health Care Coalition warns that he “‘expect[s] agency closures, jobs losses’ and patients potentially having to move into nursing homes if the hazard pay requirements become law in New York City without the federal or state government picking up the tab.” As noted previously, a Seyfarth representative who attended the May 6 hearing held by the Council’s Committee on Civil Service and Labor co-reported that numerous issues were raised, chiefly that businesses cannot possibly afford the premium pay mandate without local, state, or federal funding.

It’s Not Just the Feds: Employers Must Also Adhere to Local Paid Leave Obligations. We have all heard about the sick leave and family leave obligations in the FFCRA, but hundreds of cities and counties have filled in the so-called gap of coverage left by the FFCRA by enacting their own sick and family leave ordinances. California cities — unsurprisingly — are the most active in this field. As Seyfarth noted here, Long Beach is the most recent California City, via Ordinance, to require private employers with 500 or more employees to provider 80 hours of sick leave for COVID-related reasons. (Note: the FFCRA applies to companies with less than 500 employees). Long Beach joined Oakland, Los Angeles, San Francisco, San Jose, and San Diego have ordered employer to provide paid sick leave if an employee gets sick for a COVID-related reason. Governor Newsom also joined the sick leave fray, issuing an executive order mandating paid sick leave for food sector workers. Chicago’s COVID-19 Ordinance is noteworthy simply in its breadth — it expands already available paid leave entitlements and carries a substantial enforcement threat, permitting workers who prevail in court to win up to three times the wages lost due to their termination, plus actual damages and attorney fees.


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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