Jan 29, 2021

Policy Matters Newsletter - January 29, 2021

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This Space – For Now – Will Continue To Summarize Congress’ COVID-19 Stimulus Attempts. To that end, before he was sworn in by the Chief Justice, President Biden released the contours of a $1.9 Trillion legislative package aimed at addressing all of the collateral damage the pandemic has created, and, of course, the disease itself. Additional help could not come soon enough – the nation is losing the equivalent of lives taken on 9/11 on an almost daily basis; we have reached the horrible milestone of more than 400,000 deaths; and the economy is, needless to say, wrecked. Biden’s hand-picked choice for Treasury Secretary, Janet Yellen, during her confirmation hearing, agreed that bold action is necessary: “Without further action, we risk a longer, more painful recession now — and long-term scarring of the economy later”

And the news gets unfortunately worse: the lethality, and transmissibility, of  COVID-19, is accelerating and mutating. So, before the package is unrecognizable through amendment, broadly, what is in the President’s proposal? The proposal consists of three main parts: (1) $400 billion for provisions to fight the coronavirus with more vaccines and testing; (2) more than $1 trillion in direct relief to families, including through stimulus payments and increased unemployment insurance benefits; and (3) $440 billion for aid to communities and businesses, including $350 billion in emergency funding to state, local and tribal governments. Somewhat under the radar, the package would drastically increase the minimum wage to $15 an hour, a controversial number which will be the subject of heated debate. Indeed, a number of moderate GOP senators, including Lisa Murkowski, Mitt Romney, and most recently, Susan Collins, have expressed concern over the cost of the measure. At the same time, Senator Bernie Sanders, the incoming chairman of the Senate Budget Committee, is adamant this can be done through reconciliation, but we here at the PMN remain skeptical.  President Joe Biden’s top economic adviser met with a bipartisan group of lawmakers to quell concerns as its $1.9 trillion tab draws widening GOP opposition. Stay tuned to this space as we continue to follow this package and report on any changes – and the dynamics in the Senate when it comes to this package are changing quickly.

OSHA Issues Much-Needed Additional Guidance On Workplace Safety. It is not an emergency temporary standard – which we have discussed thoroughly in this space – but this guidance from OSHA is helpful as employers attempt to “identify risks of being exposed to and of contracting COVID-19 in workplace settings and to determine any appropriate control measures to implement.” One development of note is the recommendation that “face coverings be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents.” And it appears there was some kind of coordination to get the word out, as medical professionals have been making the rounds on the news circuits, explaining why two masks > one.

The DOL Makes It Official: Local And Community Journalists Are Creative Professionals. At Seyfarth’s urging, and due in part to the great work of our wonderful colleague Camille Olson, the DOL recently issued opinion letter FLSA 2021-7. The FLSA’s creative professional exemption allows newspapers to pay reporters and photographers a salary as opposed to hourly if their primary duty requires, “invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.”  29 C.F.R. 541.300(a)(2)(ii).  Tuesday’s opinion letter noted that  that journalists’ status as creative professionals has been a question since the government’s first attempts to regulate wage-and-hour issues, and clarifies that, in light of technological advancements, every journalist who performs the appropriate primary duties qualifies for the creative professional exemption, regardless of the size, prestige, or geographic reach of the journalist’s employer. Notably, the opinion letter was issued Tuesday January 19. While there is no reason to expect the current administration will withdraw the letter, it is notable that this was the next to last opinion letter issued by Cheryl Stanton, former Administrator of the Wage and Hour Division.

Joe Biden Selects Marty Walsh As Labor Secretary.  We here at the PMN have long believed that personnel translates into policy, and that is no different with this pick. Walsh is a “union guy,” though and through. Indeed, Before becoming a big-city mayor with all the responsibilities that entails, Walsh was a member of Laborers Local 223 in Boston and then head of the Boston Building and Construction Trades Council from 2011 to 2013. As such, employers should expect a much more union and worker friendly DOL.  For additional information on Marty Walsh, you can read Seyfarth’s excellent piece here, or listen to PMN podcast on the topic here.

That Answers The Velocity of Change Question: Biden Fires Two Top Attorneys At NLRB. The Biden administration, clearly, is not messing around – it intends to make big, drastic, and quick policy maneuvers. The examples of the current administration’s night-and-day approach to policymaking are too numerous to recount here, so, as a microcosm of the broader policy platform, we will focus on the NRLB. After refusing the administration’s request that he resign, Joe Biden fired Peter Robb, the General Counsel of the NLRB, minutes after the Chief Justice swore him in as President. Robb previously said in a letter that he would not accept the request to resign. After Robb’s firing, Alice Stock assumed the role of acting general counsel. Breath. Then, last week, the President fired her. 

As we noted here – and it is worth a read for a quick refresher on Biden and the NLRB – the NLRB is primarily a case deciding body. And the general counsel holds large sway over which cases are heard. Biden clearly wants his people deciding which cases will be brought in front of the board. This should be a shot across the bow of employers across the nation – the President intends to follow through on his campaign promise of siding with unions.

Shameless plug: the Policy Matters Podcast will be discussing this very issue in its next episode, with a special guest!

The NLRB Isn’t Alone: The Biden Administration Is Also Eyeing EEOC Shakeup. The day after he was sworn in, President Biden elevated Charlotte Burrows as the Democratic chair of the U.S. Equal Employment Opportunity Commission, with Republican Janet Dhillon stepping down from the role to serve as a commissioner. Joceyln Samuels will serve as vice chair and second in command. We will continue to follow, and report on, EEOC developments, which look to be coming fast.

Sick Leave Was Already In Vogue, COVID Caused An Explosion Across Jurisdictions. Required paid sick leave ordinances came into popularity across jurisdictions a few years ago, but really gained national notoriety with passage of the FFCRA. Since the passage of the FFCRA, jurisdictions across the country have enacted additional sick leave requirements justified as necessary to address the pandemic and all its attendant economic consequences. The laws are many, making it nearly impossible to track them all. Now that the bad news is out of the way, onto the good news: Seyfarth put together this exceptionally helpful summary of sick leave obligation passed the last couple of years, as well as a compendium of laws enacted to combat the pandemic.

The Recent Stimulus Expanded The PPP Program, And Now There Is Guidance. As we noted here, the most recent stimulus added $284 billion to the Paycheck Protection Program (PPP); $20 billion for new EIDL Grants for businesses in low-income communities; $3.5 billion for continued SBA debt relief payments; and $2 billion for enhancements to SBA lending. In early January, the Small Business Administration (“SBA”) issued its anticipated Interim Final Rules, which Seyfarth summaries here, and a bevy of additional guidance. For example, since the beginning of the month, the SBA released guidance on: (1) loan forgiveness requirements and loan review procedures;  (2) accessing capital for minority, underserved, veteran and women-owned business; (3) interim final rule of second draw PPP loans. The SBA also released guidance aimed specifically at lenders.

EEOC Green Lights Mandatory Vaccines, But Some States Pump The Brakes. As we at the PMN noted here, and as Seyfarth summarized here, essentially, the EEOC has said all employers can require mandatory vaccines as long the employer follows disability and religious accommodation requirements under the ADA and Title VII. Despite the clear federal guidance, state legislatures across the nation are proposing anti-discrimination and other laws that would erode an employer’s ability to mandate the vaccines, according to our very own Karla Grossenbacher. To date, about nine states have crafted bills that would prevent both public and private entities from mandating the COVD-19 vaccine. These bills span from New York to South Carolina, all the way to the Pacific Ocean. There is no apparent partisan or geographical pattern to these measures, and it is unclear what lobbying interests are below each measure. All of these bills are currently pending; we here at PMN will continue to track the progress of these measures. For assistance with a specific jurisdiction, reach out to your favorite Seyfarth attorney and stay tuned to this space. 

Virginia Is Back In The Labor And Employment News! Beginning in February, we at PMN began following the burst of pro employee legislation swiftly moving through the Virginia Legislature. Virginia is clearly in the running for the most employee-friendly state in the Union, and just added some points by being the first state to enact a permanent rule requiring employers to take steps to protect workers from Covid-19 infection on the job. This should have been expected since Virginia was the first states to issue an emergency temporary standard.  The permanent rule largely mirrors the temporary standard, which groups jobs into categories of high, medium, and low exposure risk. It continues a requirement for employers to create a workplace infection protection program and to train workers on how to comply. In addition, the standard sets mandates for on-the-job social distancing, cleaning, and wearing of face masks.

A Reminder To Check Out The Policy Matters Podcast. Recently, the Policy Matters team here at Seyfarth began recording digestible, 10-12 minutes podcasts on specific issues important to employers. To date, we have recorded five podcasts discussing the transition, workplace safety, and other procedural issues that may affect the velocity of change under the Biden administration. We will continue discussing these important policy issues throughout the first 100 days of the Biden administration. Impending topics include, worker classification under the FLSA, the composition of the NLRB, and more on workplace safety. Visit this link to access our podcasts. 

Save the Date For Our Upcoming Webinar: 2020 US Election - The Biden Administration: Early Actions on Labor & Employment and How They Can Affect Employers.  We will discuss the new administration's appointments and actions that directly affect employers of all types. We will also cover what trends to expect and their anticipated effects on businesses. Register Here 


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The Policy Matters newsletter is a publication of Seyfarth's Government Relations & Policy Practice and is authored by Leon Rodriguez, Scott Mallery, and Larry Lorber. Leon Rodriguez 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; and Larry Lorber is Counsel in Seyfarth's Washington, DC office. 

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