Recent Developments in COVID-19 Related Policy

Recent policy action on the coronavirus front:

(1) LENDING: On Monday June 15, 2020, the Federal Reserve opened the Main Street lending program initiated in March in the CARES Act.

(2) TESTING: Senator Ted Cruz introduced a bill to provide tax incentives to businesses that test workers for Covid-19.

(3) OVERSIGHT: On Monday June 15, 2020, it was revealed that the inspectors general designated by the CARES Act to monitor spending — the Pandemic Response Accountable Committee — wrote to key Congressional committee chairs last week expressing concern that the administration’s recent legal rulings were blocking their ability to provide oversight of the spending programs.

(4) LIABILITY: States explore limiting liability for COVID-19 related claims, including Iowa legislation signed by the governor on June 18 that limits liability retroactive to January 1, 2020 and North Carolina’s limited liability bill that passed the senate.

(5) PRIVACY: The most recent round of proposed federal legislation aimed at protecting privacy in COVID-19 contact tracing apps, follows on the heels of earlier proposals as well as state level action on the privacy front (see e.g. California bill; Minnesota bill). Around the globe, countries have introduced contact tracing apps — including Japan’s introduction today (June 19, 2020) of its national tracing app.

Uber and Lyft Drivers Sue the NY Depart. of Labor; Argue Their Unemployment Claims Wrongly Processed Like Independent Contractors, Thus Delaying Access to COVID-19 Emergency Relief

On May 25, 2020, several Uber and Lyft drivers sued the NY Department of Labor contending that their claims for unemployment benefits have been delayed because the Department is incorrectly processing their claims as those of independent contractors not employees — even though The New York State Unemployment Insurance Appeal Board ruled in 2018 that three Uber drivers (and other similarly situated individuals) were employees for purposes of the State’s Unemployment Insurance Program. (State of New York Unemployment Insurance Appeal Board, Decision in the Matter of Uber Technologies, Inc. Appeal Board No. 596722, A.L.J. Case No. 016-234949 (July 12, 2018)).

This week’s plaintiffs explain the harm in the context of the current pandemic: “[Despite the State Unemployment Insurance Appeal Board rulings, the] DOL has continued to treat app-based drivers’ applications as though they are independent contractors, placing the burden on drivers to prove their earnings and employment status. As the DOL has not required app-based car service companies to supply their earnings data, drivers’ benefit rates cannot be determined, delaying the delivery of benefits to drivers by months.”

Wisconsin Supreme Court Strikes Down State’s COVID-19 Stay-at-Home Order; Declines Transition Period

On Wednesday May 13, 2020, the Wisconsin Supreme Court struck down Wisconsin’s COVID-19 stay-at-home order in a 4-3 decision (see page 31-32 of the court’s opinion). The stay-at-home order — Emergency Order 28 — had been issued Wisconsin Department of Health and Human Services Secretary Designee Andrea Palm on March 24, 2020.

Although the legislature had requested that the court delay any order by a week to provide time for new transition rules, the court declined saying:

‘We have declared rights under the law wherein we have concluded that Emergency Order 28 is invalid and therefore, unenforceable. Although a very unusual request, on April 21, 2020, the Legislature asked this court to issue a temporary injunction of Emergency Order 28 but then requested a stay of that injunction for at least six days. We perceive this request as being grounded in a concern for an orderly transition from Order 28 to a lawful rule.
However, more than two weeks have passed since we began our consideration of this case. Therefore, we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin. People, businesses and other institutions need to know how to proceed and what is expected of them. Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs.” (At pages 30-31) (Emphasis added).

Without a delay period, the court’s decision immediately lifted the state-wide restrictions. Businesses, however, continue to face any local limits and stay-at-home orders, such as those imposed by Milwaukee. But some bars opened immediately on Wednesday after the court’s decision.

Executive Order provides two weeks of paid sick leave for California’s food industry workers impacted by COVID-19

The Executive Order signed by California’s governor on April 16th states that “workers who are sick are more likely to go to work if they do not have paid leave, thereby increasing health and safety risks for their fellow workers and other members of the public with whom they, or the products of their work.” Whereas the federal Families First Coronavirus Response Act (“FFCRA”) extends emergency paid sick leave requirements only to employers with fewer than 500 employees, the executive order applies to entities with 500 or more employees in the United States. The order provides two weeks of supplemental paid sick leave to certain food sector workers — including farmworkers, agricultural workers and those working in grocery stores, fast food chains and delivery drivers — if they are subject to a quarantine order, advised by a health care provider to self-quarantine, or prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Los Angeles adopts a supplemental paid sick leave policy, joining other state and local government efforts to expand leave policies

The April 7, 2020 emergency order requires companies with either 500 or more employees within the city of Los Angeles or 2,000 or more employees nationally to provide up to 80 hours of additional paid sick time for reasons related to COVID-19. The order, which covers individuals who perform any work in Los Angeles, aims to reach workers not covered by the federal paid sick leave legislation. A number of other cities — including San Francisco and Seattle — and states — including California, Colorado, Michigan, New Jersey, and New York — have also expanded leave policies in recent weeks.

Updated Working Paper on Pandemic Regulation Includes Analysis of the CARES Act, H.R. 748

An updated version of the Working Paper, Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis by Hiba Hafiz, Shu-Yi Oei, Diane M. Ring, and Natalya Shnitser has been posted. The Working Paper is revised and updated to incorporate the CARES Act (H.R. 748) as well as recent action by the Federal Reserve, the Department of Labor, and other agencies.

More State Stay-at-Home Orders

California Executive Order N-33-20 (Mar. 19, 2020)
Connecticut Executive Order 7H (Mar. 20, 2020)
Delaware Order (Mar. 22, 2020)
Florida Executive Order 20-68 (Mar. 17, 2020)
Illinois Executive Order No. 10 (Mar. 20, 2020)
Indiana Order (Mar, 23, 2020)
Louisiana Order (Mar, 22, 2020)
Maryland Order (Mar. 23, 2020)
Massachusetts Order (Mar. 23, 2020)

Massachusetts: Governor Orders All Non-Essential Businesses To Cease In Person Operation

Governor Charlie Baker Orders All Non-Essential Businesses To Cease In Person Operation, Directs the Department of Public Health to Issue Stay at Home Advisory For Two Weeks (Mar. 23, 2020)

Order (Mar. 23, 2020)
List of Essential Services (Mar. 23, 2020)
Assemblage Guidance (Mar. 23, 2020)

 

Consumer Protection Concerns During COVID-19 Crisis

Justice Department Files Its First Enforcement Action Against COVID-19 Fraud
FCC Consumer Fraud Warnings: COVID-19 Consumer Warnings and Safety Tips
FDIC: Insured Bank Deposits are Safe; Beware of Potential Scams Using the Agency’s Name
Office of the Inspector General: Inspector General Warns Public About New Social Security Benefit Suspension Scam
Massachusetts guidance: Protect yourself from scams and fraud

 

 

New York Halts Collection of Student Loan Debt

Forbes (Mar. 17, 2020): New York Stops Collection Of Student Loan Debt

Effective immediately, Cuomo and New York Attorney General Letitia James say that New York state will temporarily halt the collection of student loan debt owed to the State of New York and referred to the Office of the Attorney General for collection. The halt, which will last until at least April 15, 2020 and also will include collection of medical debt, is intended to provide financial relief for families who are impacted by the coronavirus.