Partisan Divide on Liability Shield, Jobless Aid Starting to Ease

Congress may be inching toward compromises on issues vexing large employers in a potential next COVID-19 relief bill, including liability protections and the disincentives to return to work related to the $600 unemployment insurance premium.   

Potential liability shield yet to be defined: As the GOP continues to work on a bill to protect businesses from COVID-related lawsuits, a group of Senate Democrats appears to be open to considering liability protection in exchange for a national workplace safety standard.  Sen. John Cornyn (R-TX) is working a bill that would require “higher standards of proof” for COVID-related lawsuits, but the details have not yet been released.  Any deal, however, could involve a trade-off.  Senators Jeff Merkley (D-OR) and Chris Coons (D-DE) said they would be open to enacting liability protection if Republicans would agree to an emergency OSHA regulation specifically addressing COVID hazards in the workplace.  HR Policy has joined other business groups in opposing a “one-size-fits-all” COVID-19 standard.  (See separate story.)

Growing concerns about work disincentives:  A Washington Post editorial this week called on Congress to fix the “unintended consequences of its [COVID] unemployment relief” and “strike the right balance” to encourage unemployed Americans to rejoin the labor force as soon as possible.  The editorial cited a new analysis from University of Chicago confirming that two-thirds of UI-eligible workers can receive benefits exceeding their previous pay and one-fifth can get double their wages.  In April, HR Policy submitted a letter to DOL Secretary Scalia requesting further clarification given these realities.  As an alternative to the House-passed extension of the COVID-19 UI benefits passed in March, Sen. Rob Portman (R-OH) is working on a proposal, which has caught the eye of some Democrats, that would let people who accept jobs keep $450 of the $600 weekly UI benefit for some time as a reemployment bonus.

Outlook:  The House passed its latest COVID relief bill, the HEROES Act.  Despite his view that the House-passed measure goes too far in numerous areas, Senate Majority Leader Mitch McConnell said this week that Congress will “probably” have to pass another coronavirus relief bill in the coming weeks.  However, a compromise is unlikely to be struck until just before the July 4th holiday at the earliest.

Contact Daniel Yager

Remote Work Will Be Core Future Strategy for Companies: HR Policy Survey, Calls

Two-thirds of HR Policy members are considering using remote work indefinitely, and 44% expect between 20% and 40% of their workforce to be remote after July 1, 2021, according to a new Association pulse survey.

Broader organizational acceptance of remote work:  Nearly 100% of respondents indicated they are very or somewhat pleased by their remote work experience, with 54% noting increased productivity and 49% reporting increased engagement.  A strong plurality noted that remote work yielded mixed results with a net positive outcome, including that culturally, more managers and senior leaders now approve of remote work.

Necessity paves way for longer-term shift in work:  Two-thirds of respondents indicated that remote work benefits are sustainable going forward.  Although many companies are using remote work as part of a gradual return to the office until a vaccine is available, many expect employees to work remotely more frequently mixed with periodic in-person team meetings in the office after the crisis.

Call explores the roles of culture, consistency, and contact:  Speaking on an HR Policy Conference Call focused on remote work, three chief human resource officers discussed how their companies expect to use remote work for the rest of the year and how they are considering it going forward.  The slides are here (members-only) and a full summary is here.

Employee surveys confirm the benefits and drawbacks of remote work.

  • A Morning Consult survey published this week conducted for Prudential found that 72% of employees gave their employers a B or higher in their response to the pandemic and 50% are more committed to their employers after the pandemic.  It also found that 55% of employees feel less connected and 46% have experienced pandemic-related stress that has negatively impacted their work performance.

  • Meanwhile, Shaakun Khanna from Oracle, speaking on our HR Policy in India call this week, presented research on employees of international employers working from home during the crisis.  He noted that the 60% of employees self-described as succeeding were more open to learning new skills, expected to work harder in the future, and expected to exhibit more loyalty, but also required more flexibility and were likely to pursue multiple income sources.

Contact Timothy Bartl

HR Policy Calls for Congress to Reject a Rigid One-Size-Fits-All COVID Standard

HR Policy encouraged Congress to reject calls for OSHA to issue an emergency temporary COVID-19 standard and instead support the agency’s current approach of issuing industry-specific guidance based on the latest CDC recommendations.

The coalition letter recommended OSHA continue enforcing the general duty clause requirement to provide a safe workplace and provide employers with the guidance they need to protect workers from the coronavirus.  Meanwhile, HR Policy joined several other business groups in a letter to the CDC seeking specific guidance.  (See separate story.)

At a House hearing this week, Subcommittee chair Rep. Alma Adams (D-NC) said OSHA “has been largely invisible.  It has failed to develop the necessary tools it needs to combat this pandemic and it has failed to fully use the tools it has.”

However, ranking member Rep. Bradley Byrne (R-AL) noted that during previous pandemics in the Bush and Obama administrations “OSHA didn’t issue a new standard but, instead, enforced existing standards and issued guidance, which in turn could be the basis for action against an employer under the General Duty Clause of the OSHA statute.”

The House-passed HEROES Act would require OSHA to issue an emergency temporary COVID-19 standard in seven days.  Meanwhile, the AFL-CIO has sued OSHA to issue a rule.

OSHA has also announced it is stepping up in-person inspections in areas where COVID-19 infections have slowed after halting most in-person inspections at the height of the pandemic last month.

Outlook:  It is unclear if the debate over this issue will be resolved in the next COVID-19 bill that is likely to pass this summer or how the courts will rule on the AFL-CIO’s petition for OSHA to issue an emergency rule.  However, should the Democrats win the White House in November, OSHA is likely to begin developing an infectious disease standard for future pandemics.

Contact D. Mark Wilson

President Trump Signs Executive Order on Regulatory Relief

President Trump issued an executive order aimed at reducing the regulatory barriers employers are facing at the federal level as the nation returns to the workplace.

The executive order directs regulatory agencies to “rescind, modify, waiv[e], or provid[e] exemptions from regulations and other requirements that inhibit economic recovery…”  The EO further calls on regulatory agencies to “give businesses…especially small businesses, the confidence they need to reopen by providing guidance on what the law requires” and “by recognizing the efforts of businesses to comply with often-complex regulations in complicated and swiftly changing circumstances, and by committing to fairness in administrative enforcement and adjudication." 

Compliance assistance for employers:  The EO asks all agencies to be quick to provide pre-enforcement rulings to employers seeking to understand whether their proposed conduct, undertaken in response to the virus outbreak, is compliant with the laws and regulations the agency enforces.  In theory, this could allow employers to receive assurance that the actions they are taking as they reopen their workplaces will not expose them to agency enforcement actions. 

Government should bear the burden of proof:  The EO further dictates that in administrative enforcement and adjudication, the government should bear the burden of proving an alleged violation of law; conversely, employers should not have to bear the burden of proving compliance.  The EO calls for several other adjudicative principles, including: (1) prompt and fair enforcement; (2) proportionate and transparent penalties; and (3) liability imposed only for violations of statutes or duly issue regulations, after notice and an opportunity to respond. 

Outlook:  While employers will continue to face a patchwork of state regulatory burdens, the EO is consistent with the Trump administration’s commitment to reopening the economy amidst the COVID-19 pandemic and could afford employers some regulatory relief at the federal level.  As Congress mulls providing liability protections for businesses as part of the next COVID-19 relief bill, the EO provides a small preview for what reduced liability could look like for the duration of the pandemic.

Contact Greg Hoff

The Case for a Chief COVID Officer

The past months have seen a dramatic increase in the need for board oversight and responsibility as companies face the evolving challenges of reintegration, volatile markets, and planning for an uncertain future.  To that end, we were struck by a recent Harvard Governance Blog post recommending that boards consider adopting a "Chief COVID Officer," appointed by and reporting directly to the Board.

Suggested responsibilities would include

  • Ensuring compliance with the multitude of public health guidelines and regulatory requirements at the federal, state, and local levels;

  • Assessing the human capital risks of reopening plans and implementing safety plans that are current with constantly developing guidance; and

  • Preparing response strategies for virus recurrence and future quarantines.

The high-profile nature of the role (to all stakeholders) and elevated risk necessitate a dedicated position.  The article makes the interesting point that although these responsibilities could be undertaken by a number of senior roles, including the CHRO, the seriousness of the situation and the high level of corporate risk involved warrant a designated position.  Given the obligation of the board to manage this risk and its mandated duty to ensure proper oversight of corporate operations, the selection of a Chief COVID Officer might help to discharge this duty under the Caremark standard for director fiduciary responsibility. 

Specific experience and skill sets will be vital.  In particular, the Chief COVID Officer would be responsible for implementing COVID-related safety measures such as screening, tracking, and contact tracing, which as the memo notes will require deep knowledge of regulations from workplace privacy to health and employment.

Why this matters:  The U.S. and many other markets are in various stages of "reopening," but there is not a substantial body of precedent to address the myriad health, legal, and economic risks still present.  Companies may find benefits in designating a specific individual to assume these responsibilities from a centralized approach.  This would ensure regular communication with the board and workforce, potentially reducing miscommunication risks from multiple sources as companies enter "the new normal."

Contact Ani Huang

HR Policy Urges CDC to Address Specific Workplace Safety Questions

HR Policy asked the Centers for Disease Control and Prevention to create a process for employers to receive detailed guidance on health and safety issues to safely reopen their workplaces.

The letter cosigned with a coalition of employer groups asks for an initial set of FAQs, including:

  • What should employers do to protect their employees when keeping them six feet apart is not possible?

  • What protocols does CDC recommend for testing of employees before reentering the workplace?  For instance: Which test(s) should employers use?  How frequently should employees be tested?  How should an employer isolate an employee who tests positive?

  • Should employers rely on employees self-testing at home?  Should employers rely on employees answering questionnaires regarding whether they are symptomatic, or their movements?

The letter also notes “CDC guidelines are central to how OSHA expects employers to comply with the General Duty Clause for protecting employees,” and “many issues are surfacing where more specific information and direction is needed.”

Outlook:  The CDC has already published some general FAQs and some agencies have provided forums for employers to submit questions they have regarding how to implement recently enacted COVID legislation.  HR Policy will continue to monitor CDC guidance and engage with the agency to address specific employer questions.

Contact D. Mark Wilson

A Walk on the Wild Side: Country-Specific Profiles in International Labor Relations

HR Policy Director of Global Relations Alan Wild’s new “Walk on the Wild Side” podcast episodes feature 10-minute employee relations profiles of India, Brazil, Japan, and the U.S., with a special appearance by labor relations expert Rick Warters.

Key takeaways of the U.S. employment relations profile include: 

  • How U.S. policy differs from the United Nations conventions 87 and 98 and how U.S. unions stand apart from other nations' unions;

  • The influence unions have on U.S. policymaking;

  • How collective bargaining agreements are handled in the U.S.; and

  • Tips for Employee Relations Specialists when working with unions in the U.S.

Listen and subscribe here!

New episodes are released twice per week, and cover in bite-sized pieces all of the issues and countries described in depth in our face-to-face learning programs.

If you would like to know more or offer ideas for subjects you would like covered in the future, drop a note to Alan at

Contact Alan Wild

BEERG: ILO Issues Return to Work Guidance

The International Labor Organization has issued guidance for creating safe and effective return-to-work conditions during the COVID-19 pandemic, including protection from psychological and ergonomic risks.

The guidance states, “The formulation of any policy guidance needs to be informed by a human-centered approach to the future of work which puts workers’ rights and the needs, aspirations and rights of all people at the heart of economic, social and environmental policies.” 

Employers should take action to mitigate risks indirectly related to COVID-19, the guidance says, "including psychosocial risks, chemical hazards resulting from increased use of cleaning and disinfectant agents, and ergonomic risks from awkward postures due to inadequate facilities and equipment, among many others."

Read the full BEERG Global Labor Newsletter

Contact Tom Hayes

DOL Races to Issue Rulemakings Before Elections

In a bid to beat the clock as the potential of a Democratic Congress and presidency looms, the U.S. Department of Labor finalized regulations regarding pay in retail or service establishments, overtime for workers with fluctuating workweeks, and the Labor Secretary’s oversight authority.

The first rule concerns Section 7(i) of the Fair Labor Standards Act, which allows overtime-exempt status to be conferred on certain employees of retail or service establishments who are paid mostly on commission.  To provide clarity in determining whether the exemption applies, the rule strikes lists of industries that “have no retail concept” and businesses which “may be recognized as retail” from existing regulations, items DOL notes has led to inconsistent court rulings. 

The second rule allows employers to give incentive-based payments to non-overtime exempt workers who have fluctuating workweeks, in addition to fixed weekly salaries.  In addition, employers must include such added payments in the calculation of the worker's regular rate of pay. 

Finally, under the third rule DOL secretaries will be granted review over decisions issued by the Board of Alien Labor Certification Appeals and the Administrative Review Board.  DOL Secretary Eugene Scalia said in a recent interview the move is intended to “promote accountability” by increasing oversight within the agency. 

Outlook:  Republicans made ample use of the Congressional Review Act (CRA) in 2017, wiping out several rulemakings made under the Obama administration.  (The CRA enables Congress to send to the President joint resolutions revoking certain final regulations through expedited procedures that avoid a Senate filibuster.)  If Democrats take the Congress and the White House in November, they will likely not hesitate to do the same if they are able.  However, the CRA limits the windows in which lawmakers can overturn regulations to 60 legislative days after they were issued.  By issuing final regulations now, it is likely these three regulations would avoid any CRA action.

Contact Daniel Chasen

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