Congressional Update. Despite our elected officials being out of town, there was a lot of action coming out of Congress this week.
- CARES Part II. On April 24, 2020, President Trump signed the Paycheck Protection Program and Health Care Enhancement Act. The new economic stimulus law adds on to the $2.2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act relief package that was signed into law almost 1 month ago. Whether it will be referred to as “Phase 3.5” or “CARES Part II,” the new law provides the following funding:
- $320 billion for the Paycheck Protection Program (PPP),
- $60 billion for Small Business Administration (SBA) disaster loans,
- $75 billion for hospitals, and
- $25 billion for a “Public Health and Social Services Emergency Fund’’ to research, develop, validate, manufacture, purchase, administer, and expand capacity for COVID–19 tests.
There is nothing in the new legislation regarding unemployment insurance, nor are there any new obligations placed on employers. Additionally, on April 23, 2020, the U.S. Treasury and Small Business Administration amended their PPP frequently asked questions document to clarify that “borrowers still must certify in good faith that their PPP loan request is necessary” in order to ensure that the program operates as Congress intended.
- Phase 5 Legislation? Now that a fourth federal legislative response to COVID-19 has wrapped up, Democrats are already discussing the possibility of a fifth coronavirus response from Congress. Items that might be addressed include an extension of unemployment benefits, more state and local funding, infrastructure spending, hazard pay, and aid to the U.S. Postal Service, among other matters. In contrast to his Democratic counterparts, Senate Majority Leader Mitch McConnell (R-KY) is taking a more “wait and see” approach to any subsequent legislation, even stating that bankruptcy—as opposed to federal dollars—may be a better option for cash-strapped localities, especially if the cash shortages may not be the direct result of COVID-19.
- The Future of Congress. As the Buzz reported last week, the U.S. Senate and U.S. House of Representatives are currently scheduled to convene in Washington, D.C., on May 4, 2020. But with over 400 representatives in the House alone, how can our representatives meet safely? This week, we got a glimpse into what legislating might look like in the future. For example, the House vote on the PPP refunding bill this week took more than one hour to complete, as members voted in staggered groups in order to adhere to social distancing protocols. Additionally, House Speaker Nancy Pelosi (D-CA) has floated the concept of proxy voting, whereby House members present in the chamber could cast votes on behalf of absent members. All of this needs to be figured out rather quickly. Whenever and however Congress returns, there will still be vitally important non-COVID-19 legislation that it must pass in the coming months, such as funding for the federal government and the military. Perhaps Congress can take a page from the Virginia General Assembly and erect a tent on the National Mall?
COVID-19 Policy Update. Set forth below are recent COVID-19-related policy developments.
- Immigration Executive Order. On April 22, 2020, President Trump issued an executive order (EO) entitled, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” The EO institutes a temporary suspension—from 11:59 PM on April 23, 2020, to June 22, 2020—on most forms of permanent legal immigration into the United States (with exceptions for, among others, healthcare providers or others assisting in combating COVID-19, as well as for spouses and children of U.S. citizens). As its name indicates, the EO is purportedly intended to protect U.S. workers who are unemployed as result of the current healthcare crisis. Importantly, the EO does not cover nonimmigrant temporary work visas, such as H-1Bs. Andrea C. Davis and Jacob D. Cherry have the details.
- EEOC to Allow Workplace Testing. On April 23, 2020, the Equal Employment Opportunity Commission updated its coronavirus guidance to address the issue of COVID-19 testing in the workplace. The guidance concludes that employers “may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” Michael Oliver Eckard has the details.
- FFCRA Now Being Enforced. April 20, 2020, marked the end of the temporary period of non-enforcement of paid leave protections under the Families First Coronavirus Response Act (FFCRA).
- OSHA Issues “Good Faith Effort” Guidance. Late last week, OSHA issued interim enforcement guidance relating to employers’ good faith efforts to comply with OSHA standards and regulations in light of the fact that the current healthcare crisis has limited the availability of employees and consultants who might normally provide training, testing, and other safety services. Jaslyn W. Johnson has the details.
Voting Record. Due to the social distancing protocols followed by the House of Representatives, the vote on the infusion of stimulus funding mentioned above took 1 hour and 22 minutes. Votes in the House normally take somewhere around 15 to 30 minutes. But even this extended vote time fell well short of the record books. The record for longest recorded vote in the House occurred on November 22, 2003, on the vote to pass the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. The vote began at 3 a.m. that morning and didn’t close until almost 6 a.m.—2 hours and 51 minutes later—when Republicans finally secured the necessary votes to pass the bill by a 220 to 215 vote margin.