Important Policies Newsletter – May 2022 #2 | Seyfarth Shaw LLP

DOL Priorities 2023, by Secretary of Labor Marty Walsh. Additional staff top Labor Secretary Marty Walsh’s wish list for 2023 as he presented proposed budget for next year at a audience before the Sub-Committee on Labour, Health and Social Services, Education and Related Agencies. During the hearing, Secretary Walsh was candid: “To be quite honest, I need more staff. We’re understaffed in the Department of Labor and, and we’re understaffed in many different places. In all of our offices, we could use more staff. The secretary’s next priority: OSHA and workplace safety. OSHA ended the previous fiscal year with only 750 inspectors, the lowest ever for the 51-year-old agency. Representative Rosa DeLauro (D-CT), chair of the subcommittee, noted in her opening statement that the White House is seeking a $355 million budget increase for worker protection agencies that includes a proposal $89 million increase for OSHA, to approximately $701 million.

When Secretary Walsh fails to keep the DOL running smoothly, he moonlights as an advocate for mental health awareness, an American crisis that escalated over two and a half years of life under a pandemic. Secretary Walsh issued a statement posted on the DOL’s website, frankly (and bravely, at that) discussing his struggles with alcoholism and encouraging anyone with a mental health problem to seek help. We join the Secretary in his quest to end the stigma.

The EEOC and DOJ release important guidance on preventing AI-related disability discrimination. Like Seyfarth Previously reported, in October 2021, the EEOC notified employers of an initiative to ensure that AI and other technologies used in employment decisions comply with federal anti-discrimination laws. May 12, 2022, discussed further by Seyfarth here, the EEOC, and the DOJ have released guidance to help employers using AI ensure compliance with the Americans with Disabilities Act. These references provide examples of the types of tools employers use and describe ways in which employers might unknowingly discriminate by failing to reasonably accommodate or screen out applicants with disabilities. Businesses should review this guidance and be aware of the specific ways AI tools can lead to disability charges and lawsuits, both of which are on the rise.

Legislative update. While much of the legislation is currently being considered in the House of Representatives, many bills are stalled in the Senate. Below is a brief overview of the current status of these measures.

  • The House passed on Tuesday HR 7309, or the “Workforce Innovation and Opportunity Act”. The measure allocates about $80 billion from fiscal year 2023 to 2028 for federal workforce development programs. The House vote was almost exclusively along party lines, 220-196, presaging a rough road in the Senate.
  • The House Education and Labor Committee on Wednesday voted 27 to 19 along party lines to approve HR 7701, targeting wage theft, or compensation at a lower rate than workers and employers have agreed, whether through an employment contract or a collective agreement. The bill would require employers to provide detailed pay stubs, keep wage records accessible to employees, ban mandatory arbitration agreements and class action waivers, and increase fines for violations of the fair labor standards. As with HR 7309, the party line vote in the House committee does not bode well for the fate of the measure in the Senate.
  • Last week the House passed HR 309, or the Transportation Safety Administration Worker Rights Act of 2021, again on a majority partisan vote of 220-201. The legislation calls for granting TSA employees the rights and protections provided by Title 5 of the U.S. Code, which other federal workers are subject to and benefit from. For example, the measure would give TSA workers the right to bargain collectively. the White House “strongly supports” passage of the bill, calling it “an important step in ensuring fair compensation for the TSA workforce and consistent with the President’s 2023 budget request to improve employee compensation.” TSA employees”. Either way, the bill faces an extremely uphill battle in the Senate.
  • In March, the House passed HR 2954, or the Securing a Strong Retirement Act of 2021 (SECURE Act) by an overwhelming vote of 414-5. The bill would require employers who establish new defined contribution plans to automatically enroll newly hired employees, when eligible, for a pre-tax contribution level of 3% of the employee’s salary, allow older workers to contribute more to tax-advantaged retirement accounts and to help small employers offer retirement plans by giving them a tax credit. The Senate is considering its own version of the measure, and will likely vote on the measure in committee in June. Stay tuned, as this measure has the best chance of becoming law.
  • In early April, Sen. Ben Cardin (D-MD) and Sen. Roger Wicker (R-MS) introduced what was then a bipartisan effort, the Small Business COVID Relief Act of 2022. (S.4008), to provide COVID relief to restaurants and other “hard hit” industries. Yesterday, however, the Senate did not invoke closure on the motion to proceed, in a procedural vote of 52 to 43 subject to a 60-vote threshold. The closing vote was likely the death knell for a months-long effort to provide one last round of relief to industries that have suffered severe revenue losses during the pandemic. The House passed similar COVID-19 relief wrap in April on a majority partisan vote, but we do not expect any movement in the Senate.

Where does the BIF money go?? President Biden has touted the bipartisan Infrastructure Act, aka the Infrastructure Investment and Employment Act, as one of the great victories of his administration. But this measure was passed months ago, and it’s time to start asking where the money is going. Well, last week the White House published a list over 8,500 infrastructure funding allocations made since the enactment of the infrastructure law six months ago. The credits are mainly for highways and bridges, as well as grants for airports and some water and resilience projects. The largest specified project funded so far is a $1.3 billion Advanced Reactor Demonstration Program grant from the Department of Energy for a project in Kemmerer, Wyoming. The list was published as part of a sort of infrastructure law guide published on the occasion of the sixth anniversary of the signing of the law. There is still a lot of work and a lot of allowances. Stay tuned.

The future of the EV? Like Seyfarth recently reported in his Future of Automotive series, electric vehicle makers and interest groups representing dealers and technicians who sell and service gasoline-powered automobiles continue to battle it out in state legislatures. Over the past decade, several state laws have been passed, with some states siding with EV manufacturers, allowing them to sell and service vehicles directly, while some states only allow Tesla to do so, while other states completely ban EV manufacturers from direct sales and service. However, the pace of legislative change has recently slowed. And while there has been a nationwide push to promote the adoption of electric vehicles, including a Biden administration executive order targeting a 50% share of electric vehicle sales in the United States of by 2030, existing state laws and the reluctance of state legislatures to make necessary changes. will likely continue to impede the adoption and distribution of EVs directly to consumers.

States are taking up the mantle of paid family leave in light of congressional inaction. Like Seyfarth reportedon May 10, 2022, Delaware became the eleventh state to enact paid family leave legislation – the Delaware Healthy Families Act. This continues a growing trend of states passing paid vacation laws in the absence of congressional action on Capitol Hill. The patchwork of state leave laws is frustrating to employers doing business in more than one state, given the different requirements and configurations of different state laws. But unfortunately, it doesn’t look like Congress will act on this issue anytime soon — it’s more likely that other states will pass their own laws that employers will have to contend with.

More of the Great loosening: California relaxes COVID workplace safety rules. On April 26, the Occupational Safety and Health Standards Council – part of the California Division of Occupational Safety and Health – voted to approve the third re-enactment of the temporary COVID-19 emergency standards, or ETS, which came into effect on May 6. We was Following how the California the administrative state takes care of the pandemic through his ETS. As regards the substance, although a large part of the Current ETS remains intact, the changes should ease employers’ headaches by removing some of the more onerous requirements. For example, the new ETS:

  • removes the definition of “fully vaccinated” from the ETS — therefore, the ETS will no longer distinguish between fully vaccinated and non-fully vaccinated employees;
  • removes, in most cases, face covering requirements for employees who are not fully vaccinated;
  • eliminates most cleaning and disinfection requirements; and
  • updates the definition of testing to allow for self-administered and self-read testing for return-to-work purposes, but only if another means of independent verification of results can be provided (e.g., time-stamped photograph of results).