COVID-19 Update February 19, 2021

This week, the NAPEO Federal Affairs Committee invited another guest speaker from the US Chamber of Commerce, Marc Freedman, to our weekly meeting. As VP of Employment Policy, his responsibility is to lobby Congress on behalf of the Chamber on all things relating to employment.

First, Mr. Freedman reviewed the current and forthcoming appointments that have been put in place thus far by the Biden Administration. He spoke of Marty Walsh, former mayor of Boston who’s been approved for the Secretary of Labor and has a reputation for being collaborative, which is looking like a good thing for both parties. Additionally, Julie Su, former head of unemployment for California, has been selected by Biden for the position of Deputy Labor Secretary, although she leaves her previous position with a less than positive outlook for that state.

Furthermore, the following positions are still awaiting appointments: OSHA, Wage and Hour, Solicitor of Labor. President Biden has proposed several candidates with a heavy union background, which is not so surprising given his platform during the election.

Next, our guest speaker shared some of the topics being discussed on Capitol Hill.

The independent contractor ruling enacted by the Trump Administration during his final days in office was put in a holding position by President Biden’s initial round of executive orders, being that it had a 60-day window before officially becoming legislation. The ruling will very likely be reopened and modified before being passed. Under the Obama Administration, the view was that there’s a thin line between independent contractors and employees, and legislation surrounding this issue made it easier for workers to be considered employees and receive those corresponding benefits.

The Joint Employer Doctrine allows more than one employer to be liable for employee damages (e.g. overtime, back wages) if the employers are found to co-determine employee terms and conditions of employment.  In a recent Third Circuit case involving the health care industry, a panel has reversed a lower court ruling that found two entities were not a joint employer meaning that one company now has to defend the collective action allegations of unpaid overtime. This doctrine has been held up in court for a while now, so it will also probably be reopened and revised to reflect the way it was interpreted under the Obama presidency. However, since overtime regulations were enacted through this statute, it will be much more difficult for any changes to take place through an executive order. Thus, we don’t see this as a high priority for the current administration.

The Protecting the Right to Organize (PRO) Act, filed in the House earlier this month, proposes drastic changes to the nation’s laws governing employer-union relations, especially the ability of employers and employees to remain union-free. The PRO Act proposes more than 20 significant changes to the National Labor Relations Act. It reads like a comprehensive wish list from the AFL-CIO and other unions to try and get everything they want in one huge bill. Some of the items proposed by the Pro Act include: taking away states’ rights to work allowance, putting in the card check rules, putting in laws like California 85 law across the country, and much more. It’s likely to get through the House and set up the Senate for the filibuster rule, although doubtful to pass here, too.

President Joe Biden recently issued an Executive Order for OSHA to consider an emergency temporary standard (ETS) for COVID-19, and it’s looking like one will be put in place by March 15th with so much momentum on the hill putting pressure on OSHA to get this done. For further context, an ETS has not been enacted since 1984 to provide a consistency of protection across states. What will be included in this ETS is pure speculation, however, we expect the wording from the CDC guidelines to change, making protection mandatory instead of voluntary.

In addition, for enforcement of claims, it’s currently up to you to protect your employees and show what you have put in place. Under the new guidelines, employers will be asked what they have done to protect workers, which will open room for lawsuits. Accordingly, Amazon filed a COVID-19-related lawsuit on February 12th arguing that the New York attorney general’s office exceeded its authority to regulate workplace safety issues during the pandemic. Employers are still waiting to see whether the U.S. Department of Labor (DOL) will issue guidance requested by President Joe Biden clarifying that workers who refuse unsafe working conditions can still receive unemployment insurance.

It has been two months since the last stimulus bill, and the IRS is still not giving any more details on ERTC to address what is needed to get things filed properly. They should be feeling the pressure from Congress and the Treasury to provide further insight into these issues outstanding.

As previously mentioned, Delta is working with a task force that has been consulting with the IRS to provide solutions on how to make the process easier to submit these credit requests through an automated process. We met last week, and the IRS responded this week that they are taking this under advisement and will discuss moving forward with this request internally. Our Consortium of Associations and their respective lobbyists have also gone to the Treasury to urge the IRS to seriously consider our suggestions on automation. Other avenues we can take is through a legislative fix by speaking to the heads of the Ways and Means Committee or the House Finance Committee. Senators from various states are also involved and want to do what they can to help get these monies in the hands of small business owners as soon as possible. This suggestion is not language that can be added to the Reconciliation Bill; however, it must be passed as part of regular legislation, which makes this harder to accomplish.

The IRS has clarified how corporations may qualify for a new 100% limit for disaster relief contributions and offered a temporary waiver of the recordkeeping requirement for corporations otherwise qualifying for the increased limit. The Taxpayer Certainty and Disaster Tax Relief Act of 2020 (TCDTRA of 2020), enacted December 27, temporarily increased the limit, to up to 100% of a corporation’s taxable income, for contributions paid in cash for relief efforts in qualified disaster areas.

The COBRA subsidy that was part of the stimulus bill that passed in December is likely to be set up so that the eligible employees will have to pay $.15 cents on the dollar for their cost of coverage, while employers will be responsible for $.85 cents of every dollar of the premium for any employee taking this new subsidy. If the employer must front their portion of the premium, and then use a tax credit to get reimbursed for these monies, this is going to put a huge strain on small businesses with the time that we’ve seen the ERTC checks take to come in. An idea they’re discussing is sending the money directly to the carrier and letting them deal with COBRA subsidies, but the carriers are pushing back. We hope there’s a better system in place before this goes into effect.

Lastly, while many workers in the U.S. are eager to receive the COVID-19 vaccination—and many employers plan to encourage them to do so—a significant number of workers say they are unlikely to get vaccinated, according to new research by the Society for Human Resource Management (SHRM). At the same time, a substantial number of workers believe the COVID-19 vaccine should be mandatory for everyone who is able to receive it, which could create conflicts with colleagues who won’t get vaccinated.

According to Global Workplace Analytics, 80% of those with a job where at least half of what they do could be done remotely would like to continue working from home at least part of the time. While this could be a solution for vaccination conflicts, there are several things to consider, so we’ve posted a guide to managing a remote workforce with finesse.

If you have any questions about any of this, please give us a call.

Have a great weekend!

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