Federal Judge Strikes Down NLRB Election Rule.   As we noted here and here, the NLRB's election procedures have been a consistent source of controversy and consternation. In December 2019, the NLRB issued a final rule to revise union election procedures without first releasing a proposed version for public comment, as the Administrative Procedure Act (APA) typically requires. The Rule would have extended some procedural deadlines and provided employers more opportunity to challenge the process. In March, the nation's largest labor group, the AFL-CIO, sued the NLRB, insisting the District Court for DC should strike down the final rule for violating the APA. The labor group convinced the Court, which issued an order on May 30, overturning those elements of the rule challenged by the AFL-CIO for failure to comply with the APA. For a comprehensive explanation of the ruling, see Seyfarth's analysis here. In a statement published Monday, the NLRB insists it complied with the APA in instituting the rule, and plans to appeal the order.

House Passes PPP Relief Legislation! But it is doomed in the Senate. But then it's not!   In a stunning moment of bipartisanship, the House voted 417-1 late last week to pass the Paycheck Protection Program Flexibility Act, H.R. 7010. The legislation is intended to provide small businesses more flexibility in how SBA loans may be used while still qualifying for loan forgiveness under the program. The legislation was heralded by the business community, particularly the non-profit sector. Despite its popularity, and comments from the majority leader that he expected the legislation to pass the Senate without issue, the legislation hit a Republican snag in the Senate. On Wednesday, Senator Schumer (D-NY) tried to move the bill through the Senate via unanimous consent, but Senator Ron Johnson (R-Wis.) objected, complaining the bill keeps the program in place for too long and would allow for funds to be dispersed to organizations that do not need them. After all the back-and-forth, and despite the feared resistance, the Senate passed the legislation via unanimous consent Wednesday evening. The bill was signed by President Trump today, June 5, 2020. Seyfarth issued an analysis of the measure, available here.

PWFA Still Alive?  You will recall that after a lengthy markup on January 14, 2020, the House Committee on Education and Labor approved an amended version of the Pregnant Workers Fairness Act (H.R. 2694). The amendments would require that employees are able to perform the essential functions of the job, with or without reasonable accommodation; did not have a veto over which accommodation was acceptable; and must make known to the employer the condition in question. Other changes strengthened the interactive process to determine the appropriate accommodation (as under the ADA), clarified that good faith on the part of the employer during the accommodation process would limit damages, and specified that the legislation applied to employers with 15 or more employees.  This amended version has the support of the business community. Late in the process, however, questions arose regarding possible requirements imposed by the bill on faith-based employers. This issue was not resolved, resulting in all but two Republican committee members opposing the bill. Nevertheless, Ranking Member Foxx made clear that she was otherwise supportive of the compromise reflected in the revised bill. Whether or not the religious exemption issue can be worked out before House Floor consideration or in the Senate remains to be seen. Seyfarth testified on the original legislation on October 22, 2019, helping to lay the ground work for improvements. While a committee report has not yet been filed, we have learned that the other House committees of jurisdiction, House Judiciary and House Oversight, have waived consideration of the bill – indicating that the Democrats may be moving to a Floor vote soon.

Agency Guidance on Testing Remains Lacking.   Testing, testing, testing has been the refrain for employers across the country. But now that testing is more readily available, and businesses are seeking to reopen as safely as possible, the question becomes not to test or not to test, but rather how to test. While the guidance generally provides that employers may administer COVID-19 tests and temperature tests, its fails to answer some fundamental testing questions.  For example, when or how often should employees be tested? Should there be a blanket testing policy for job seekers? Can employers require employees to obtain a test on their own prior to returning to work? Who is responsible for paying for the tests? Does the guidance leave employers who cannot obtain tests or afford to pay for testing of their workforce open to potential liability because they did not test their employees? Can an employer require that an employee in a high risk group remain at home and telework?  Would such a policy violate the ADEA? The CDC missed an opportunity to answer these questions when it recently released guidance on reopening for white-collar office workers.

It Isn't Just Testing — Contact Tracing is Similarly Worrisome.   This week, US Senators Maria Cantwell (D-WA), and Bill Cassidy (R-LA), introduced bipartisan legislation called the "Exposure Notification Privacy Act," which is intended to give Americans confidence that the contact tracing apps they are using are from legitimate sources and will protect their privacy. Specifically, the measure would require anyone who operates an exposure notification service to "collaborate" with public health authorities; make usage of the app voluntary; and block the commercial use of any data it might collect.  Silicon Valley, however, maintains its technology is a step ahead of the draft language.

Bill Introduced to NJ Legislature Aimed at Increasing Paid Sick Leave for Essential Workers.   NJ Assemblywoman Pamela Lampitt (D) introduced A4209, that would, among other things: increase the number of hours of earned sick leave a worker may annually accrue, use, and carry forward from one year to another; eliminate the 120-day period after hiring in which an employee is not eligible to use accrued earned sick leave; and increase the period of time after which an employer may require from an employee documentation by a health professional of the need for leave. Stay tuned to this space as we continue to track this measure.

Essential Workers Exempted from NYC Curfew Amid Protests.   This week, Mayor Bill de Blasio issued Emergency Executive Order No. 119 – taking measures beyond those he issued in prior Order Nos. 117 and 118 – imposing a "City-wide curfew to be in effect each day from 8:00pm until 5:00am, [from] June 3, 2020 [to] June 8, 2020." Section 2 provides: "This Order shall not apply to . . . individuals traveling to and from essential work and performing essential work. . . ." What constitutes essential work is defined by the Empire State Development Corporation. According to the Order, the City Administration is instituting the curfew due to the escalation of "assault, vandalism, property damage, and/or looting" during the George Floyd protests. Governor Andrew Cuomo announced last Friday that New York City, one of the global centers of the coronavirus pandemic, would begin reopening on June 8 – the day the curfew ends, and that five Upstate regions were to enter Phase Two of reopening on May 29. Business guidance for Phase Two of the state's reopening plan is available here. New York joins other cities, including Los Angeles that have already imposed curfews in the wake of widespread unrest. However, the curfew hasn't stopped thousands of demonstrators from marching through the streets of New York City during the night.

Relevant Developments in California.   About 2800 miles away, Sacramento Mayor Darrell Steinberg has instituted a similar curfew for similar reasons. While the George Floyd protests are, rightfully, the top stories across the news media, we are still in the grips of a Pandemic, and the California Legislatures does not abate for protest. Recently, the California Senate's Judiciary Committee voted to approve SB 939, which would institute a state-wide moratorium on the eviction of commercial tenants who have been adversely affected by the COVID-19. As Seyfarth noted in its insightful piece here, the bill includes tenant protections that go well beyond a suspension of evictions, news that is not great for commercial landlords. This is all happening in the backdrop of California businesses attempting to reopen in compliance with the maelstrom of local, state, and federal guidelines. Despite this crisis upon crisis upon crisis, California Attorney General Xavier Becerra recently released regulations on the State's strict privacy law, and asked for expedited review of the same, which means the regulation employers must comply with will likely be in effect July 01. Seyfarth issued an explanation of the law here, noting the plethora of organizations, legal and otherwise, who have pleaded with the AG to delay enforcement of the law due to the ongoing Pandemic. In California, employers must not only walk and chew gum at the same time, they also have to skip.

While the Feds Tread Water on a Liability Shield, States Jump in the Fray.   Multiple bills aimed at shielding business from liability for claims based on COVID-19 have passed the Louisiana Legislature, and now await the Governor's signature. Among those measure, SB 508 would immunize restaurant operators from civil liability related to Covid-19 and HB 826 would more broadly shield businesses. Should the Governor sign those bills, Louisiana would join North Carolina, Oklahoma, Utah, and Wyoming in enacting liability protections for businesses related to Covid-19. Similar bills have passed at least one legislative chamber in Arizona and Ohio.  The passage of those measures surely constitutes a sigh of relief for businesses in those states with the legislative fortitude to pass legislation to shield businesses from liability for COVID-related claims. But what about businesses in the vast majority of states without such protections? For a general discussion about liability reform issues in the context of COVID-19, see Seyfarth's analysis here.

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