Beltway Buzz, May 1, 2020

Congressional Update.

• May the Fourth Be With You? Not so Much. As the Buzz discussed previously, Congress was scheduled to return to Washington, D.C., next week. This week, however, House Majority Leader Steny Hoyer (D-MD) announced that the U.S. House of Representatives would not return due to health concerns (the rate of positive coronavirus tests continues to increase in D.C.). The U.S. Senate, on the other hand, still plans to convene next week, despite the fact that 49 Senators are 65 years of age or older. In fact, the Senate Judiciary Committee has already scheduled a judicial nominations hearing for May 6, 2020.
• An immovable object v. an unstoppable force. According to Majority Leader Hoyer, one of the reasons that the House won’t reconvene next week is that a Phase 4 legislative response is not primed and ready. Republicans and Democrats remain at loggerheads over what should be contained in a new legislative response. Senate Majority Leader Mitch McConnell (R-KY) continues to prioritize the need for certain liability protections for businesses, while Democrats push for hazard pay and more federal funding for states and municipalities to ensure continuation of essential services. Time will tell if the parties can come to a compromise.

COVID-19 Policy Update. Below are recent COVID-19-related policy developments.

• Social Distancing Guidance. Federal social distancing guidelines expired on April 30, 2020. President Trump has indicated that the guidelines will not be extended.
• PPP Open for Business. The Small Business Administration’s Paycheck Protection Program, as established by the Coronavirus Aid, Relief, and Economic Security (CARES) Act, began accepting new loan applications on April 27, 2020, after receiving a $320 billion funding injection from the Paycheck Protection Program and Health Care Enhancement Act.
• Benefits Guidance Issued. On April 29, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued guidance materials and a set of frequently asked questions relating to federal statutory timeframes for group health plans, pension plans, and disability and other welfare plans, during the current health crisis. First, a notice issued jointly by EBSA and the Internal Revenue Service (IRS) extends timeframes for displaced workers to secure alternative health coverage (such as health care continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA)) and to file benefit claims or appeals. A second notice extends the time for plan administrators to deliver benefit statements, funding notices, and other disclosures as long as they make a good faith effort to produce such notices as soon as practicable.
• Poultry/Meatpacking EO and Guidance. On April 28, 2020, President Trump issued an executive order (EO) invoking the Defense Production Act (DPA) and delegating his authority to Secretary of Agriculture Sonny Perdue “to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.” (Note that the EO and DPA are more about allocating resources and prioritizing federal contracts, rather than “forcing” these industries to remain open). This Centers for Disease Control and Prevention (CDC)/Occupational Safety and Health Administration (OSHA) guidance provides recommendations to minimize the risk of spreading COVID-19 in these industries, including modifying the alignment of workstations, establishing social distancing protocols (such as staggering work shifts), using cloth face coverings, cleaning and disinfecting tools, as well as screening and monitoring employees.
• Unemployment Insurance. According to a U.S. Department of Labor (DOL) press release, as of April 28, 2020, all 50 states and the District of Columbia are paying the $600 benefit pursuant to the Federal Pandemic Unemployment Compensation (FPUC) program created by the CARES Act.

EEOC Makes History. On April 29, 2020, for the first time in its almost 55-year history, the Equal Employment Opportunity Commission (EEOC) held a remote public meeting. Among other action taken during the meeting, the Commission voted to rescind Section 604 of its Compliance Manual because it is outdated, and the Commission provides more detailed and up-to-date guidance materials covering the same subjects. The Commission also voted to issue an opinion letter stating that employers may take advantage of the Work Opportunity Tax Credit (WOTC)—which is designed to encourage employers to hire from certain targeted groups that have faced significant barriers to employment—without running afoul of federal discrimination laws.

Joint Employer in Effect. The National Labor Relations Board’s joint-employer rule went into effect on April 27, 2020. The rule replaces the amorphous joint employer standard established in Browning-Ferris Industries by returning to an easy-to-understand rule that focuses on employers’ substantial control over essential employment terms.

“Justice Thomas, Unmute Your Line.” The Supreme Court of the United States (SCOTUS) is used to making history, but on May 4, 2020, it will do something that is truly unprecedented in its history: hold oral arguments via teleconference. This is quite a step for an institution that is not known for being on the cutting edge of technology (the Court has long rejected video recordings of oral arguments). In an April 28, 2020, press release, the Court set forth more details on how the arguments will proceed, including how the justices will ask questions in order of seniority. Interestingly, the arguments will be livestreamed through multiple media outlets, so get your popcorn ready, SCOTUS watchers!