AN UPDATE FROM NAW GOVERNMENT RELATIONS TEAM - 10.23

Latest on the Next Congressional Pandemic Relief Package

Chances for a U.S. COVID-19 relief package passing Congress before the November 3rd election are fading fast as House Speaker Nancy Pelosi and Treasury Secretary Steven Mnuchin continue to negotiate over the details of a nearly $2 trillion aid package.

Meanwhile, Senate Democrats voted 51-44 against a targeted $500 million GOP bill that would have provided a second round of funding for the Paycheck Protection Program and additional COVID-19 relief.  Republicans also blocked a bill from Senate Finance ranking member Ron Wyden (D-OR) that would have renewed the $600-per-week federal subsidy to unemployment benefits.  Many employers – including many NAW members – report that the bonus payment has made it difficult for them to hire or re-hire workers.

Click HERE to read a Bloomberg story for more in-depth coverage of the ongoing negotiations.

Latest on Economic Recovery and Re-Opening the Workplace

As the Coronavirus Pandemic continues to impact the United States economy and businesses across the nation, it can be hard to decipher how new regulations and laws may impact your business.  To help you manage these issues NAW is providing information about reports, webinars and seminars that you may find useful:

From McGuireWoods LLP:

OSHA Issues Guidance for Prompt Reporting of COVID-19 Hospitalizations and Fatalities

The U.S. Occupational Safety and Health Administration issued guidance clarifying employers’ obligations to report COVID-19 cases caused by workplace exposure that result in hospitalization or death.

Click HERE to learn more about this guidance, which directs employers to promptly report such hospitalizations and fatalities if they determine the in-patient hospitalization occurred within 24 hours of the workplace exposure or the fatality occurred within 30 days of such exposure.

From Reed Smith Law Firm:

New York City passes key amendments to paid safe and sick leave law

New York City first adopted a local paid sick leave law in 2014.  Over the ensuing 6 years, the City legislature amended the law several times, including in 2018 to add “safe leave” as a form of paid time off.  Late last month, the City amended the Earned Safe and Sick Time Act (ESSTA) yet … Continue Reading

Webinar from Littler Law Firm:

You're Not Alone: Answers for Southeastern Employers Operating in the New Norm    |    Tuesday, October 27, 2020    |    12:30 pm-1:30 pm PDT

Employers continue to grapple with finding their new normal in this challenging environment where the rules employers must follow are ever-changing.  Attorneys will present up to the minute insight, analysis and best practices for keeping employees and customers safe while complying with the latest safety, privacy, disability and discrimination laws, CDC guidance and public health obligations.  Participants will benchmark measures taken and issues faced by other employers around the Southeast.  There will also be an update on recent changes to the FFCRA and benefits issues.

To register, click HERE.

Stateside Associates publishes a daily report about State and Local Government responses to the evolving situation.  To read their latest report, click HERE.

We are also providing a link to a spreadsheet that includes state and local COVID-19 response information provided by MultiState Associates.  To view their spreadsheet, click HERE.

Unrelated to COVID-19

Latest on California v. Texas, U.S. Supreme Court Case Challenging the Affordable Care Act

From McGuireWoods Consulting LLC:

On November 10, 2020, the U.S. Supreme Court will hear oral arguments for California v. Texas, the case challenging the Affordable Care Act’s (ACA) constitutionality.  This case centers on the ACA’s minimum essential coverage provision, the “individual mandate” requiring that people maintain a minimum level of health insurance coverage.

In NIFB v Sebelius, the mandate was upheld as constitutional because the Supreme Court saw it as a tax.  In 2017, Congress passed the Tax Cuts and Jobs Act, which eliminated the individual mandate penalty effective January 1, 2019, raising questions about the mandate’s constitutionality.

At the time the ACA was passed, the individual mandate was seen as a principle part of the law and how it would work.  Since Congress zeroed out the penalty for failing to have minimum coverage, the thinking on the importance of the mandate has changed.  Originally, 20 states led by Texas brought suit.  However, after the 2018 elections, 2 states chose not to continue their participation.

In the lower court decision, the judge found the mandate unconstitutional.  The appeals court agreed but sent the decision back to the lower court for the judge to review what elements of the law might be severable and thus would not fall.  Twenty-one states, led by California, asked the U.S. Supreme Court to intercede before the lower court judge could review the law to determine what from the ACA was intertwined with the individual mandate and what was not.

The Trump Administration has not defended the constitutionality of the ACA’s individual mandate.  Instead, the Department of Justice agrees with the state and individual plaintiffs in the case that the individual mandate is no longer constitutional because of the penalty elimination by the 2017 Tax Cuts and Jobs Act.

Supreme Court to Address Standing

The U.S. Supreme Court will address whether the plaintiffs have standing to challenge the individual mandate, by considering the following:

  • Is the mandate unconstitutional now?  If the plaintiffs have standing, then the Supreme Court must determine whether Congress’ act in zeroing out the penalty renders the individual mandate unconstitutional.
  • If the individual mandate is unconstitutional, what else from the law falls and what can be kept in place?  Should the Supreme Court find the individual mandate unconstitutional, it then must decide if the entire law must be struck or if parts of the law can be retained because they do not rely on the mandate being implemented.  This would include the Medicare and Medicaid sections of the law and provisions that went into effect before the implementation of the mandate.  The court must decide whether insurance reforms in the law fall with the mandate. 
  • If the entire ACA is determined invalid, then the Supreme Court will consider whether the entire law is unenforceable nationwide or whether it should be unenforceable only to the extent that provisions injure the individual plaintiffs.

The U.S. Supreme Court could hand down a decision as late as June 2021.  The ACA’s future will be determined by litigation that likely will go on for several years.

Latest on Confirmation Proceedings for Judge Amy Coney Barret for the U.S. Supreme Court

Today, the Senate begins floor consideration of President Donald Trump’s Supreme Court nominee, Amy Coney Barrett after the Senate Judiciary Committee approved Barrett's nomination yesterday.

The Senate is scheduled to hold several procedural votes throughout the weekend and is set to hold a final confirmation vote Monday evening on Barrett’s nomination.  While Democrats can’t stop the nomination, they have been forcing a series of procedural votes on the floor as part of their opposition to the process.

From the Wall Street Journal:

A Democratic majority is poised to revive union workplace dominance

With Joe Biden now favored to take the White House, how much of his agenda becomes law will depend on who runs the Senate.  Democrats are close in enough races to win a majority, so the public should understand the radical change they’d be voting for.

A good place to start is the pro-union agenda that would repeal much of the landmark Taft-Hartley Act of 1947 and impose union dominance in the workplace.  To read the full WSJ story, click HERE.


 

Jade West, Chief Government Relations Officer

Blake Adami, Vice President-Government Relations

Seth Waugh, Associate Vice President-Government Relations

National Association of Wholesaler-Distributors

 

The above information and links to other information has been prepared by NAW for the general information of NAW members.  It is not intended to, and does not, provide tax, legal or professional advice concerning any specific matter.  You should not act on the information without first obtaining professional advice and counsel.

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AN UPDATE FROM NAW GOVERNMENT RELATIONS TEAM - 11.20