IHMM Today December 15, 2020

Federal Government Funding Runs Out Friday the 18th

The House on December 9th passed, on a bipartisan 343 to 67 vote, a continuing resolution to extend federal government funding through December 18 and keep the government open after the current stopgap funding law expires Friday.

“Top Washington negotiators continued to reach for a long-delayed agreement on COVID-19 relief on Monday, but rank-and-file Democrats appeared increasingly resigned to having to drop, for now, a scaled-back demand for fiscal relief for states and local governments whose budgets have been thrown out of balance by the pandemic.

House Speaker Nancy Pelosi, D-Calif., spoke with Treasury Secretary Steven Mnuchin by phone Monday evening and continues to press for help for struggling states and localities. But top Democratic allies of President-elect Joe Biden came out in support of a $748 billion plan offered by a bipartisan group of lawmakers and hinted they won’t insist on a pitched battle for state and local aid now.

“We cannot afford to wait any longer to act. This should not be Congress’ last COVID relief bill, but it is a strong compromise that deserves support from both Republicans and Democrats in the Senate,” said Sen. Chris Coons, D-Del. “We cannot leave for the holidays without getting relief to those Americans who need it.” -AP

NOTICE OF ENFORCEMENT POLICY REGARDING HAZARDOUS MATERIALS TRAINING REQUIREMENTS FOR MARITIME WORKERS

Due to the impacts of the COVID-19 public health emergency, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) announced on March 25, 2020 that it would not take enforcement action against any hazardous materials (hazmat) employer who was unable to provide recurrent training for employees as required by the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). On June 24, 2020, PHMSA extended this notice. PHMSA’s notice of enforcement discretion is scheduled to expire on October 31, 2020. PHMSA understands, however, that certain hazmat employers engaged in the maritime transportation of hazardous materials may be continuing to experience difficulty in providing the required recurrent training. Read more here.

ASSOCIATIONS ADVOCATE FOR VACCINE PRIORITY

Assuming that states follow the CDC recommendation that healthcare workers and residents of long-term care facilities get the first available doses of the COVID-19 vaccine, the question is: Who will be next? Associations in a variety of industries are making the case to the CDC Advisory Committee on Immunization Practices (ACIP) and state governors that the workers in the field they represent are essential and should be included in the next stage of vaccine distribution. Among them: Read more here.

PHMSA Reinstatement & Extension of Enforcement Policy regarding Hand Sanitizers

On December 8, 2020 PHMSA issued a notice regarding the reinstatement of the temporary policy for hand sanitizer distribution and an extension of relief from DOT enforcement.

PHMSA Notice of Reinstatement and Extension of Enforcement Discretion for the Transport of Hand Sanitizers

Key elements:

• Manufacturers of hand sanitizers are required to comply with all applicable hazardous materials regulations
• Hand sanitizer manufactured and packaged prior to October 31, 2020 that have not been distributed may continue to be shipped under the previous exemption “Temporary Policy for the Transportation of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency (COVID-19) (Notice of Enforcement Discretion)”
• PHMSA will not take enforcement action against any offeror or carrier offering or transporting hand sanitizers manufactured and packaged prior to October 31, 2020 in accordance with the previous notices.
• This exemption is effective until March 31, 2021

PHMSA Notices:

Notice April 10, 2020 – “Temporary Policy for the Transportation of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency (COVID-19) (Notice of Enforcement Discretion)”

Notice June 24, 2020 – “Notice of Extension of Temporary Policy for the Transportation of Certain Alcohol-Based Hand Sanitizer Products During the COVID-19 Public Health Emergency” extending the relief until October 31, 2020, and expanded it to include transportation by rail.”

Notice December 8, 2020 – “Notice of Reinstatement and Extension of Enforcement Policy Regarding Hand Sanitizers”

Beltway Buzz – Ogletree Deakins

Tick Tock. The clock is ticking and the 116th Congress has three big tasks in its waning days: ensure the federal government does not shut down due to a lack of funding, pass the National Defense Authorization Act, and get an economic stimulus package on the president’s desk. With regard to government funding and economic stimulus, as of now, the plan appears to punt those items to next week (via a one-week continuing resolution) and then roll them together into one legislative vehicle (though even this strategy appears perilous because there is no such agreement yet at the time of this writing). While this strategy buys legislators time, it isn’t as if they have been making much headway, particularly with regard to an economic stimulus bill. Indeed, the negotiations this week have resulted in almost no substantive progress from our report last week, and the status of negotiations on all three bills appears to be getting worse, not better.

• Compromise bill. There is still hope that the parties can agree on a compromise $908 billion aid package, but there is little indication that Republican leadership in the U.S. Senate is on board with the proposal. Moreover, as the clock ticks down, this compromise package has not even been distilled into legislative text.
• White House effort. There is also a proposal from the White House that totals more than the $908 billion compromise package. The White House proposal would provide one-time $600 stimulus checks in place of any extension of unemployment insurance programs.
• Liability protections. Employer liability protections from COVID-19–related lawsuits continue to remain a sticking point among congressional negotiators. This is true even in the compromise bill, which evinces some idea of temporary liability reform, though actual agreement on what that means remains an issue. Senate Majority Leader Mitch McConnell (R-KY) suggested that Republicans and Democrats drop their respective demands for liability reform and state/local aid, theorizing that abandonment of the two major sticking points could lead to a breakthrough, but Democrats rejected this offer.
• Paid leave extension? The emergency paid family and sick leave provisions of the Families First Coronavirus Response Act expire at the end of December 2020. So far, it does not appear that any extension and/or expansion of these programs is being discussed.

OFCCP Finalizes Religious Exemption Regulation. On December 9, 2020, the Office of Federal Contract Compliance Programs (OFCCP) finalized a rule to “clarify the contours of the E.O. 11246 religious exemption and the related obligations of federal contractors and subcontractors.” The rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption,” establishes protections for religious organizations to “hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors.” Opponents of the rule argue that it opens the door for discrimination. The new regulations go into effect on January 8, 2021. Of course, this final regulation is well within the calendar window for Congressional Review Act treatment in the 117th Congress. If Democrats can muster 50 votes in the Senate—through some combination of victories in the Senate runoff elections in Georgia or peeling off a Republican or two—they could rescind the final regulation. Failing that, the incoming OFCCP will likely rescind the regulation but would have to go through the lengthy Administrative Procedure Act rulemaking process in order to do so.

EEOC Opinion Letters. On December 8, 2020, the U.S. Equal Employment Opportunity Commission announced a new process for stakeholders to request opinion letters. This is relatively new territory for the Commission, having issued its first opinion letters in 30 years earlier in 2020. Like opinion letters issued by the U.S. Department of Labor, formal opinion letters from the EEOC can serve as a defense to liability. Whether this new process will survive the change in administrations is unclear.

House Democrats Outline Desired Employment Policy Changes. This week, Democrats on the House Committee on Education and Labor issued a report entitled “The Future of Work: How Congress Can Support Workers in the Modern Economy.” The report advocates for the passage of the Protecting the Right to Organize (PRO) Act and makes the following additional specific policy recommendations:

• “[E]stablish employment tests that create a rebuttable presumption of employee status and include clear requirements that an employer must demonstrate to overcome this presumption, such as the ‘ABC’ test.”
• Rescind the DOL’s 2020 rule on joint employment under the Fair Labor Standards Act and replace it with the 2016 Administrator’s Interpretation on joint employment.
• “To promote collective bargaining beyond the firm level, Congress should explore policy options for encouraging and promoting sectoral bargaining.”
• “[D]irect the EEOC to establish a new division devoted to [combatting] digital discrimination.”
• “Both vendors and employers should be required to open their [hiring] processes to independent audits, conducted by or developed in conjunction with government regulators, the outcomes of which should be made public.”

These will all be issues to watch as the new administration and new Congress begin their work in 2021.