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NAW Government Relations Updates

NBMDA is pleased to present its members with timely and relevant updates from the National Association of Wholesaler-Distributors (NAW) Government Relations team featuring important government decisions, guidance and resources for business executives. Topics covered in the following briefs include updates on federal relief bills, federal loans, tax changes, unemployment benefits, workplace reopening issues and challenges, and more.

This page will be regularly updated. We encourage members to bookmark this page in your website browser to easily access new updates as soon as they become available.

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July 19, 2021

1. Latest on Bipartisan Infrastructure Deal

The bipartisan infrastructure framework (BIF) that was agreed to between President Biden and a group of 22 senators is continuing to move forward, though time is running short to get it done. Senate Majority Leader Chuck Schumer wants to vote on the bill before the Senate leaves for their August recess; however, there are only a few legislative days left before that recess and the framework is still having some kinks ironed out and the actual legislation has yet to be written.

While we wait for details of the spending priorities in the bipartisan plan, debate continues on whether and how the spending in the plan will be “paid for.” One specific proposal has generated significant debate, and significant controversy: an increase in funding for the IRS to facilitate more audits and resulting tax payments. This is part of the continuing debate over the “tax gap” – taxes that are owed but not paid.

The Biden Administration’s tax plan included a proposal to address the tax gap by requiring banks to provide information to the IRS on their account holders’ financial transactions of $600 or more – both business and individual customers. This proposal was designed to allow the IRS to increase audits of upper-income earners to increase tax collection, but it was – not surprisingly – wildly unpopular, and it was generally assumed it was “going nowhere.”

Now the sponsors of the BIF compromise have brought the idea back by proposing more IRS funding to increase tax collection to offset the spending in their plan. The BIF sponsors have said that the Biden bank reporting requirement will not be in their proposal and have promised further “safeguards” to ensure that increased IRS funding will not lead to abuse of power by the IRS – an issue of particular concern to Republicans because of the IRS targeting of conservative groups for increased tax scrutiny almost a dozen years ago. Adding to resistance to the idea, previous “tax gap” compliance measures have targeted small- and mid-sized businesses (in two instances the proposals were so onerous they were repealed before taking effect), so small business advocates are very leery of yet another tax gap initiative.

To complicate matters further, Democrats in the Senate are moving forward with a significantly larger (and partisan) Democrat-only budget framework, which would start the budget reconciliation process. On Tuesday night Senate Democrats on the Budget Committee agreed to a $3.5 trillion top-line spending level for the reconciliation bill that will be the vehicle for the bulk of President Biden’s “human infrastructure” agenda. Although the $3.5 trillion budget blueprint is a significant downgrade from the originally envisioned $6.5 trillion, it still may not get the support of all 50 Senate Democrats (which it will need to pass). Moderate Senators like Kyrsten Sinema (D-AZ) and Joe Manchin (D-WV) have expressed concern about adding to the national debt and are pushing for the legislation to be fully (or at least mostly) paid for. Meanwhile, on Senator Schumer’s left flank, progressive members and environmental groups are concerned that the $3.5 trillion does not allow for enough spending on climate change measures.

The only way to pass the bipartisan infrastructure bill is for Democrats to achieve total party unity and convince at least 10 Republican senators to support the legislation. But by pursuing the $3.5 trillion reconciliation bill in tandem, Senator Schumer is walking a tight-rope and must ensure that he does not implicitly link the two bills together, or else he risks losing Republicans who may be supporting the bipartisan bill. Thus far, there still seems to be hope of finding a way forward on a bipartisan infrastructure package … But Charlie Brown always thought he had a chance to kick the football that Lucy held for him.

Finally, we would appreciate your feedback on the proposal to increase IRS funding, enforcement, and audits to offset infrastructure spending.

BIF sponsors are asking business groups to support their proposal to increase IRS funding to pay for the infrastructure spending, arguing that addressing the “tax gap” with increased IRS funding should be an acceptable alternative to increased business taxes.

We are watching this closely, waiting to see what safeguards against IRS abuse are proposed, and to see whether the IRS funding would in fact be proposed INSTEAD of other taxes, or in addition to them.

In the interim, we would really appreciate your feedback on this issue:

  • Would you support more IRS funding to address the tax gap or facilitate increased audits of upper income earners as a general policy, and/or
  • Would you support that increase in IRS funding and tax collection activity only if it were proposed in lieu of business tax hikes?

2. Latest on PPP Loans

We reported last fall that the Small Business Administration (SBA) was requiring borrowers of large PPP loans (over $2 million) to complete and submit extensive and detailed financial information on a “loan necessity” Form 3509 as part of their application for loan forgiveness.  Presumably related, we have also heard from PPP borrowers, both NAW members and members of other industry associations, that the SBA has been extremely slow in processing forgiveness applications for large loans.  (See our update #105 HERE)

We have just learned that the SBA is no longer requiring borrowers to complete and submit Form 3509 with their forgiveness application.  We are expecting a formal announcement of that shortly from the SBA but have heard from both lenders and SBA staff, all of whom confirm that the form is no longer required and that an SBA announcement to that effect is imminent.  Probably not coincidentally, we have also recently heard from some large loan borrowers that their loan forgiveness applications have been approved.  

We will of course keep you posted if we learn of any changes in in the SBA’s withdrawal of Form 3509.

3. Latest on the Federal Government vs Amazon

Last Friday, President Biden issued an Executive Order (EO) focusing on competition throughout the economy.  Part of the order specifically targeted the predatory tactics and unfair competition of Big Tech, including Amazon.  The order overlaps with the House's recent bipartisan antitrust legislation passed a few weeks ago.  In particular, the order focuses on three aspects of the giant tech platforms' behavior: their acquisitions of potential competitors, their gathering of consumers’ personal data and their competition with small businesses.

You can read NAW’s press release on the Executive Order HERE.

Meanwhile, the House continues to fight over revisions to the antitrust package, which, as of late last month, House Majority Leader Steny Hoyer (D-MD-4) said wasn’t ready for floor consideration.  Last week, House Republicans, led by Minority Leader Kevin McCarthy (R-CA-23) and Representative Jim Jordan (R-OH-4), rolled out their own alternative antitrust plan.  Their proposal includes overhauling Section 230 of the Communications Decency Act and mandates that the companies publicly list content moderation decisions. 

According to a story published in Politico, a members-only phone call by the Congressional Progressive Caucus this week broke out into a fight between Representative Zoe Lofgren (D-CA-19) and supporters of the antitrust bills aimed at Big Tech.  As reported, after several members expressed support for the antitrust bills during the call, Representative Lofgren called the legislation shoddy, and said that the committee advanced the bills in a hasty, bungled process.  She had offered similar criticism during last month's 29-hour markup.

Regardless of what happens on the Hill, President Biden’s EO indicates he may not be afraid to accomplish some of these changes on his own.  Both Amazon and Facebook have now formally requested that Federal Trade Commission Chair Lina Khan be recused from any antitrust investigation targeting the companies, arguing her past statements about the e-commerce giants create the appearance that she has prejudged them.

Chair Khan will first consider whether she wants to recuse herself. Depending on her decision, the issue would then go before the FTC to review and decide, based on whether "a disinterested observer may conclude that [the commissioner] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it."  Chair Khan previously declined to pledge to recuse herself from the agency's probes of tech giants, saying she would “seek the guidance of the relevant ethics officials at the agency and proceed accordingly.”

4. Latest on the 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:

Webinar from Littler Law Firm:

The Legal Implications of the Wandering Worker

Due to increased flexibility to work from home during the COVID-19 pandemic, workers are on the move, taking advantage of the opportunity to “wander” and work temporarily from a variety of remote locations.  Increasing numbers of employers are observing that remote work may be here to stay even after sheltering restrictions are relaxed.  This new normal of employees working from other locations triggers unexpected compliance issues that employers must appreciate and address.  Littler Cleveland attorneys will present a lively discussion of the “wandering worker” challenges, including:

  • Wage and hour compliance
  • ADA accommodations
  • Workplace safety and workers’ compensation
  • Privacy and information security
  • Tax considerations

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.

June 28, 2021

1. Latest on Congressional Antitrust Bills Targeting Amazon

Last week, the House Judiciary Committee passed six bipartisan bills targeting the abusive and anticompetitive practices of the four largest tech monopolies in the country. In particular, the American Innovation and Choice Online Act and the Ending Platform Monopolies Act, sponsored by Reps. David Cicilline (D-RI-1) and Pramila Jayapal (D-WA-7), would prohibit Amazon from abusing their power in ways that harm competition and third-party sellers. Together, these bills will restore competition on Amazon Business’ (B2B) marketplace by preventing them from using their market power to pick winners and losers, favor their own products, or otherwise distort the marketplace through abusive conduct.

To read NAW’s press release from last week, click HERE.

The road ahead for these bills remains long and uncertain.  House Speaker Pelosi has given a general thumbs-up to the antitrust push and supports bringing these bills to the floor.  However, there are several Silicon Valley Democrats who have pushed back on these bills claiming that they go too far and will ultimately be bad for their constituents.  Some conservatives are also upset that these bills do not include language to prevent these tech companies from censoring conservative speech.  House Republicans, led by Minority Leader Kevin McCarthy (R-CA-23) and Rep. Jim Jordan (R-OH-4), rolled out their own alternative this week.  Their proposal includes overhauling Section 230 of the Communications Decency Act and mandates that the companies publicly list content moderation decisions.  Politics aside, last week was a major step in NAW’s long journey to curb Amazon’s anti-competitive and abusive actions.

In 2019, NAW engaged on a mission to urge the Federal Trade Commission (FTC) and Members of Congress to end Amazon Business’ monopolistic mistreatment of third-party sellers.  Amazon Business (the company’s B2B unit) has taken the B2B marketplace, in which NAW members operate, by force.  The FTC has opened an investigation into Amazon’s conduct in several areas, including that of the Business to Consumer (B2C) market.  In early 2020, we held a meeting with the FTC to discuss Amazon Business’ mistreatment of its third-party sellers in the B2B marketplace.  We made the case that Amazon’s exploitative conduct in B2B commerce mirrors the playbook it has executed in the B2C marketplace.  Unchecked, Amazon’s dominance threatens to cripple the highly competitive B2B system which exists in our country.

Around the same time, the House Judiciary Antitrust Subcommittee was underway with its own investigation into Amazon’s abusive treatment of third-party sellers.  In several meetings with Subcommittee Members and staff, we demonstrated how Amazon Business is anything but competitive.  Like its B2C business, Amazon plays “both sides” of B2B by selling its own products in direct competition against third-party sellers who sell on Amazon Business.  In late 2020, the Subcommittee released its blockbuster report detailing allegations of anti-competitive abuses by tech’s most powerful companies, including Amazon, and offered a menu of policy remedies on how to clamp down on their anticompetitive and abusive practices.  Investigation of Competition in Digital Markets, Majority Staff Report and Recommendations, Subcommittee on Antitrust, Commercial and Administrative Law, Committee on the Judiciary, House of Representatives, pages 237-339 (October 2020)

https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf

On a similar but separate mission, NAW continues our fight to stop Amazon from securing a government granted monopoly.  Section 846 of the FY’18 National Defense Authorization Act (Public Law 115-91) established a framework for determining whether commercial e-commerce portals would be appropriate for government agencies use to make non-contract purchases of commercial off-the-shelf (COTS) products.  The law charged the General Services Administration (GSA) with establishing and managing the testing of three models.  Although the General Services Administration (GSA) identified three credible e-commerce purchasing channels, its June 2020 award tests only one model, the Amazon platform.  All other e-commerce models are excluded.  GSA’s award to three vendors, the most prominent being Amazon Business, ignores the explicit Congressional direction to test several e-commerce platforms.  GSA’s selection of Amazon as the gatekeeper reduces competition for the federal customer and forecloses access to the federal market.

Since its award, GSA has released no meaningful information addressing the progress and challenges of its pilot marketplace.  Amazon’s inability to protect the federal purchaser from counterfeit and illicit products presents significant risk but does not appear to be addressed by GSA’s requirements beyond that it is a vendor responsibility.  Nor is there any indication that the obligations associated with Section 889 of the National Defense Authorization Act for 2019 as to Chinese manufactured telecommunications equipment are being fulfilled.

We are currently working with Rep. Veronica Escobar’s (D-TX-16) office on legislation that would require the GSA to expand its proof-of-concept testing to include the other two portal models mandated by Congress and prevents Amazon from selling its own products against third-party sellers on its marketplace.  We are also requesting that the Government Accountability Office (GAO) conduct an independent study and report on the business practices of dominant online platform operators in the business-to-business digital market.

2. Latest on Bipartisan Infrastructure Deal

In March, President Biden put forward his American Jobs Plan, a massive $2.3 trillion “infrastructure” proposal which was to be paid for by raising the corporate income tax rate from 21 to 28 percent, ending subsidies for fossil fuel companies, increasing the global minimum tax from approximately 13 percent to 21 percent, and deficit spending.  The American Jobs Plan also proposed funding many things which have never traditionally been considered “infrastructure” like home healthcare and the Protecting the Right to Organize (PRO) Act, which is the union boss wish list of the past 70 years.  This extremely broad view of what comprises “infrastructure” immediately made the legislation a non-starter for Republicans, as well as some moderate Democrats.

However, over the past several weeks there have been productive negotiations between the White House and Senate Republicans to find a path forward on an infrastructure bill, which resulted in the bipartisan compromise that was announced last week.  The funding was scaled back and many of the provisions that Republicans believed to be extraneous were shelved.  Finally, last week President Biden and a bipartisan group of 21 Senators (11 Republicans, 9 Democrats, and 1 Independent) announced that they had come to an agreement on a $1.2 trillion infrastructure package and, for the first time in a long while, Washington D.C. seemed to be working again.  

The compromise bill was composed of many of the traditional physical infrastructure policies put forward by President Biden in the American Jobs Plan, and although the bill has yet to be officially written, the White House has released a fact sheet on the framework with the broad policy ideas and funding levels – the framework can be viewed HERE

But as soon as Washington seemed to be in harmony with Republicans and Democrats pedaling together, a fistful of sand was thrown into the gears.  During the press conference announcing the bipartisan deal, President Biden bluntly stated that “I expect that in the coming months this summer, before the fiscal year is over, that we will have voted on this bill, the infrastructure bill, as well as voted on the budget resolution.  But if only one comes to me…I’m not signing it.  It’s in tandem.”  In other words, the President said he would not sign the infrastructure bill he had just agreed to unless Congress also passes and sends to him a “reconciliation” bill with additional spending and trillions of dollars in tax hikes.

Republican negotiators were blindsided and threatened to walk away from the deal, and over the weekend the White House scrambled to put out the fires and save this delicate compromise.  The White House sent out a lengthy clarification statement trying to walk back the President’s very clear statement that he would not sign an infrastructure bill without a tax hike-reconciliation bill reaching his desk at the same time.  You can read the Administration’s clarification statement HERE.

The cleanup has seemed to work for now, with several Republican Senate negotiators saying they were back on board and that they trust the President to keep his word and sign an infrastructure bill if one reaches his desk, irrespective of the possible passage of the tax-hike reconciliation bill.

The separation of the two measures will allow NAW and our allies in the business community to aggressively advocate for enactment of the infrastructure bill and equally aggressively oppose the Administration’s proposed tax increases as separate and distinct measures, as they should be, rather than having support for the much-needed infrastructure measure be jeopardized by burying it in tax hikes.  

Even though in recent history passing an infrastructure bill has been the proverbial football that Lucy pulls out from under Charlie Brown, it appears that Congress is closer to passing a true infrastructure package today than at any other time in at least a decade.

There is still much work to be done and NAW will continue to monitor the situation and provide our members with updates on the progress of this important issue.

3. Latest on President Biden’s Labor Policy

According to Harvard Professor Benjamin Sachs, “President Biden is being hailed as the most pro-union president in a generation.” Professor Sachs is “optimistic,” and the business community worried, that the description will be accurate.

Early in his administration, President Biden issued an “Executive Order [EO] on Worker Organizing and Empowerment.”  This EO argued that “the Federal Government has not used its full authority to promote and implement [the] policy of support for workers organizing unions and bargaining collectively with their employers” and that “it is the policy of my Administration to encourage worker organizing and collective bargaining.”  The EO created a “Task Force on Worker Organizing and Empowerment” to “identify executive branch policies, practices, and programs that could be used, consistent with applicable law, to promote my Administration’s policy of support for worker power, worker organizing, and collective bargaining” and to “identify statutory, regulatory, or other changes that may be necessary to make polices, practices, and programs more effective means of supporting worker organizing and collective bargaining.”

Pro-union appointments, nominations and policies have followed.

Personnel:

Just hours after taking the Oath of Office, President Biden fired the General Counsel of the National Labor Relations Board, an appointed position with a specific term of office.  No incoming president of either political party has terminated a sitting GC for the entire 70-year history of the Board.  

Pro-union activists were nominated and/or appointed to fill key positions at the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission.  Just to name a few of his appointments:

Marty Walsh, former construction trade union official, to be Secretary or Labor;

Jennifer Abruzzo, executive at the Communications Workers of America, to be General Counsel of the National Labor Relations Board;

Sharon Block, former Obama NLRB member, to run the office that oversees federal regulatory issues (OIRA), who wrote that “OIRA can be a force for making sure that the most progressive regulations get through the gate;” and

Gwynne Wilcox, former member of the Board of the AFL-CIO Lawyers Coordinating Committee, to the NLRB.

Legislation:

The top priority of the Administration and their allies in Congress is enactment of the Protecting the Right to Organize (PRO) Act, a combination of pro-union polices that includes:

  • Repealing all 27 state Right to Work laws;
  • Making secondary boycotts legal;
  • Prohibiting employer “captive audience” meetings during a union campaign;
  • Making intermittent strikes “protected concerted activity;”
  • Allowing employee access to employer email systems for union organizing activity; and
  • Increasing penalties on employers for unfair labor practices.

The PRO Act has already passed the House of Representatives and has 47 co-sponsors in the U.S. Senate.  Senate Majority Leader Chuck Schumer has said he will bring the PRO Act up for a vote as soon as it has 50 co-sponsors.   

As enacting the PRO Act is labor’s top priority, defeating it is the top priority of the business community.  The Coalition for a Democratic Workplace, which NAW helps manage, is leading that effort, and a member of our Government Relations team – Seth Waugh – co-chairs CDW’s Lobbying Committee and is leading the fight to prevent passage in the Senate. 

Regulatory actions:

The Department of Labor has begun what is expected to be an ongoing effort to repeal or reverse Trump Administration labor regulations, beginning with their reversal of the Independent Contractor and Joint Employer rules of the previous Administration.  

Also, the director of the Wage and Hour Division (WHD) under President Obama, David Weil, has been re-nominated to that position.  It was under his direction that WHD promulgated the Fair Labor Standards Act “white collar exemption” rule that would have raised the minimum salary for exemption from $23,000 to more than $50,000 (the final rule raised it to $47,000). NAW was a plaintiff in the lawsuit that resulted in that rule being overturned, but if Weil is confirmed to that position again, we anticipate he will again propose FLSA rules changes.

Summary:

We fully expect that the aggressive pro-union agenda of the Biden Administration will result in court challenges, as did the Obama-era rules and regulations.  The Coalition for a Democratic Workplace led the effort against many of the rules and regulations throughout the Obama Administration – a summary of those actions can be found here.  NAW is fully committed to again participate in the effort to fight pro-union legislation and regulations in Congress and in the courts.

4. Latest on Other Issues Impacting NAW Members

Supreme Court Tosses Lawsuit Challenging Obamacare:

On June 17th, the Supreme Court threw out a lawsuit threatening the entirety of Obamacare.  The court ruled in a 7-2 finding that Republican-led states behind the case lacked standing to challenge the health care law.  The case argued that Obamacare was rendered unconstitutional after Congress eliminated the penalty for not having health insurance.  Four of the court's conservative justices joined with the three-member liberal wing to reject the lawsuit.

The opinion by Justice Stephen Breyer was joined by the court’s two other liberal justices and all but two conservatives, including Trump appointees Brett Kavanaugh and Amy Coney Barrett.  By finding that Republican-led states could not contest a change to the law, the conservative justices were essentially shielded from grappling with larger questions about whether Obamacare was no longer constitutional.  "[W]e conclude that the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants’ conduct in enforcing the specific statutory provision they attack as unconstitutional," Justice Breyer wrote.

The ruling will give new energy to Democratic efforts to build on Obamacare, through richer insurance subsidies and potentially a public option.  However, the prospects for other Democratic health care priorities are uncertain.  President Biden has avoided substantive debate on his campaign proposals, like lowering Medicare’s eligibility age, government-mandated drug price negotiations and creating a government-run insurance option.  With razor-thin margins in Congress, Democrats have just a small window to deliver on their health care plans before the 2022 midterm elections.  As we mentioned in the last GR report, Senate Health Committee Chair Patty Murray and House Energy and Commerce Chair Frank Pallone have started collecting feedback on a public option.

The Chairs issued a Request for Information (RFI) to the general public, which is very unusual.  Their letter asks for input on who should be eligible to join a government-run plan, how to structure its benefits, and how to maintain a network of doctors.  The July 31st deadline they set for input just before Congress’ August recess leaves little time to make actual progress this year.  You can read the RFI HERE.  The Partnership for Employer-Sponsored Coverage (P4ESC), which NAW helps manage, is currently drafting comments to the RFI which we will share with you in a future update.

5. Latest on the 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 Bloomberg Law:

Masks Off—Navigating the Covid-19 Vaccine Era: Legal Insight

Employers face challenging times with return-to-work policies, especially surrounding the Covid-19 vaccine.  Baker Botts attorneys break down the legal issues surrounding masks, vaccines, and privacy issues and offer recommendations for workplace guidelines.  To read the full article, 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.

May 27, 2021

1. Latest on President Biden’s Proposed Tax Increases

Last week, the House Judiciary Committee passed six bipartisan bills targeting the abusive and anticompetitive practices of the four largest tech monopolies in the country. In particular, the American Innovation and Choice Online Act and the Ending Platform Monopolies Act, sponsored by Reps. David Cicilline (D-RI-1) and Pramila Jayapal (D-WA-7), would prohibit Amazon from abusing their power in ways that harm competition and third-party sellers. Together, these bills will restore competition on Amazon Business’ (B2B) marketplace by preventing them from using their market power to pick winners and losers, favor their own products, or otherwise distort the marketplace through abusive conduct.

New Coalition – America’s Job Creators for a Strong Recovery – to oppose Biden tax increases:

NAW and four allied business groups recently joined together to organize a new tax coalition – America’s Job Creators for a Strong Recovery – to respond to the Biden Administration’s proposed business tax increases.  Like all NAW’s legislative coalitions, this one will lobby against the tax increases; however, this new coalition has a different primary mission:  to work with consultants and a polling firm to try to shape public opinion on the tax hikes.  President Biden and his allies consistently argue that taxes should be increased on businesses and the “wealthy” because they don’t pay enough in taxes and should be required to “pay their fair share.”

Given that the average effective tax rate in distribution and several other industries has always been at or higher than the statutory rates, the “fair share” argument is a false narrative, but polls consistently show that voters believe it.  The mission of our new coalition is to conduct public opinion surveys, determine if voters change their minds when given more – and more accurate – information, and mount a targeted media campaign to convince both voters and members of Congress to oppose the Biden tax increases.

We officially launched the coalition yesterday with more than 30 members (including many NAW member associations) and conducted a webinar on our most recent polling data.  The coalition continues to grow, and as you may have seen, has caught the attention of the media.  Earlier this week there were several news reports on the coalition, and NAW CEO Eric Hoplin did a Fox Business interview.  Here are links to those press stories and to Eric’s interview:

 We always appreciate any feedback and anecdotal information you can share with respect to the proposed tax increases and how they would impact your business, and we will of course keep you apprised of the new coalition’s growth and activity.

LIFO Update:

The NAW-led LIFO Coalition continues to work to ensure that LIFO repeal is not included as a “pay-for” in tax or spending legislation.  We have had numerous meetings with Democratic and Republican members of the tax-writing committees in the House and Senate and continue to get great feedback and reports that LIFO repeal is not being considered – or even discussed – as the tax bills develop in Congress.  Some of the key Democrats on the House Ways and Means Committee have long been, and continue to be, allies in our mission to protect LIFO, and we have been told anecdotally that Senate Finance Committee Chairman Ron Wyden (D-OR) has said he is also not considering LIFO repeal.

Despite the consistent and welcome good news, NAW and the Coalition continue to work the issue.  We are currently trying to identify House Democrats who do not serve on the tax-writing committee who would be willing to sign a joint letter to Speaker Pelosi simply notifying her of their interest in protecting LIFO, so she is aware of the issue should it come up in later tax discussions.  We are also working to build relationships with new members of Congress who are most likely not familiar with LIFO to provide them with background information on the accounting method.  To that end, the Coalition’s consulting firm (The Herald Group) has just taken a LIFO chart and explanatory material prepared by one of the tax experts in the coalition and created a visual document explaining how LIFO works.  Companies on LIFO clearly understand the issue in much greater depth, but we think this visual guide will be very useful in demonstrating LIFO as an essential business tool to members of Congress unfamiliar with inventory accounting methods.

Finally, The Herald Group is always looking for good anecdotal stories from LIFO users on the importance of LIFO to their business, and we would particularly like to include on our coalition website any videos that businesses would be willing to provide, talking about their use of LIFO.  If you would consider providing either a written or video-taped LIFO comment, please let me know.

2. Latest on the Vaccine Distribution

NAW is actively involved in the vaccine distribution issue, working with member companies in a joint effort to get the government to involve the entire wholesale distribution industry.

Addressing International PPE Supply Shortages and Disruptions with FEMA:
Throughout the pandemic and continuing into 2021, many distributors have experienced unprecedented supply shortages and supply chain disruptions that have limited the availability of critical PPE.  Items like nitrile gloves, N95 respirators, and medical syringes quickly became scarce due to both a spike in domestic demand and subsequent manufacturing and transportation constraints abroad.

NAW joined a working group of companies and industry groups that meets with the Federal Emergency Management Agency (FEMA) regularly to advance strategies to remedy these issues.  Our meeting this week focused on strategies to improve the domestic supply of N95 masks and medical gloves.

State and Local Vaccine Distribution Tracker by Littler Law Firm:
As with nearly everything about this pandemic, guidance and action plans vary by state and local jurisdictions and are constantly evolving.  To that end, Littler Law Firm provides links to state agency websites, vaccine allocation plans, and other guidance related to the rollout of COVID-19 vaccines, as well as basic vaccination plan phases.  To see the latest updates, click HERE.

Additional Vaccine Distribution Resources:
In a previous update, we included additional information and resources on vaccine distribution, which you can access HERE.

3. Latest on the 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 Reed Smith Law Firm:

NJ employers ready to ditch the masks?  Not so fast.

On May 24, 2021, New Jersey Governor Phil Murphy announced that he is lifting the indoor mask mandate in most circumstances effective May 28, 2021.  Many New Jersey employers interpreted this to mean that they may choose to eliminate mask requirements in their workplaces beginning this Friday.  However, the issuance of Executive Order No. 242 ...… Continue Reading.

From Littler Law Firm:

MIOSHA Amends COVID-19 Emergency Rules as Michigan Eases Workplace Restrictions

Effective May 24, 2021, The Michigan Occupational Safety and Health Administration (MIOSHA) revised its COVID-19 Emergency Rules.  To read more, click HERE.

Webinar from Litter Law Firm:

COVID-19 in the Workplace: Recent Developments and Compliance Challenges - Session 15

It has become apparent that COVID-19 is going to dominate employment and labor law issues for the foreseeable future.  The American workplace has become the first frontier as the pandemic creates new legal issues – seemingly every day.  In response to the many questions that business leaders, human resources professionals, and in-house counsel have about facing these new legal challenges, Littler's Sacramento office created the “First Friday" webinar series.  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.

CDC Guidelines and OSHA:  As you know the CDC made clear in its lifting of the mask mandate that their guidance did not pre-empt OSHA guidelines.  As of today, a Labor Department/OSHA rule imposing an “emergency temporary standard” is still sitting at the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA), where it was sent for their required review.  As ludicrous as it is for OSHA to still be considering a temporary emergency COVID safety rule, we do not yet know if OIRA will continue with the new rulemaking, withdraw it, or send it back to OSHA.  We and our labor-issue allies continue to monitor this situation and will let you know immediately if/when we get new information. 

May 20, 2021

1. Latest on President Biden’s Proposed Tax Increases 

As you all know, President Biden has proposed two large spending proposals, one a traditional “hard” infrastructure bill and a second “social infrastructure” proposal.  Both proposals would be “paid for” with significant tax increases on both C corporations and pass-through businesses.

A recent survey we conducted of NAW members shows that more than 70% support a traditional infrastructure bill, but that even larger majorities oppose increases in the corporate income tax rate or the individual tax rate that pass-through businesses pay – 76% and 91% respectively.

NAW is working with allies in the DC trade association community to support passage of an infrastructure bill, but to oppose the direct business taxes the President has proposed.

There are now indications that the magnitude of the Biden tax hike proposals – several trillion dollars – is causing both Democrats and Republicans on Capitol Hill to question the wisdom of the plan.  For example, the proposed changes to the estate tax – repeal of stepped-up basis on capital assets and taxation of unrealized capital gains at death – is getting particular scrutiny, as this story today in Bloomberg details.

Nevertheless, those advocating for enactment of all the Biden tax increases point to public opinion polls showing that there is broad support for increasing taxes on corporations and the wealthy.  But other recent polling shows that, when asked the direct question, most poll respondents say that the most anyone should have to pay in taxes is 25 percent.  Clearly, both assertions cannot be correct.

NAW is now working with allied trade associations, consultants, and a polling firm to organize and launch a new coalition.  The mission of this coalition is not just advocacy but will conduct polling and message testing to see how public opinion responses are impacted when the respondents learn more about the tax proposals and will include a targeted media campaign.  We expect this new coalition to be announced next week.

We will of course keep you informed of the coalition effort and the status of tax legislation in Congress. 

2. Latest on CDC Mask Guidelines

As we reported earlier this week, the new CDC mask guidance has raised more questions than it has answered, since they clearly stated that the CDC guidance does not preempt OSHA or EEOC guidelines.

Also, as we noted, OSHA updated its website to include this notice:

The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

Unfortunately, that statement remains on the OSHA website and no update to their materials has been released.  And EEOC has posted nothing at all on its website on the issue.  We are continuing to closely monitor OSHA and EEOC and will let you know as soon as we learn more.

In the interim, in addition to the May 13th Littler law firm analysis we provided last Tuesday (you can access it HERE), the K&L Gates law firm has just released an excellent “U.S. Labor, Employment, and Workplace Safety Alert” on this topic that you might find useful.  You can access the K&L Gates alert HERE.

3. Latest on the Vaccine Distribution

NAW is actively involved in the vaccine distribution issue, working with member companies in a joint effort to get the government to involve the entire wholesale distribution industry.

State and Local Vaccine Distribution Tracker by Littler Law Firm:

As with nearly everything about this pandemic, guidance and action plans vary by state and local jurisdictions and are constantly evolving.  To that end, Littler Law Firm provides links to state agency websites, vaccine allocation plans, and other guidance related to the rollout of COVID-19 vaccines, as well as basic vaccination plan phases.  To see the latest updates, click HERE.

Additional Vaccine Distribution Resources:

In a previous update, we included additional information and resources on vaccine distribution, which you can access HERE.

4. Latest on the 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:

Webinar from Littler Law Firm:

Virtual Human Resources – Managing the Remote Workforce

Wednesday, May 26, 2021    |    9:30 am-10:30 am PDT

We are one year into the pandemic, and the latest data shows that about 33% of the American workforce continues to work remotely (from home).  Managing a distant workforce has always been a challenge – think of trying to manage and coach outside salespeople.  As the number of employees working from home has increased dramatically, human resources (HR) needs to refine its approach to managing the workforce.  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.

May 4, 2021

1. President Biden’s New $1.8 Trillion American Family Plan

Today marks President Biden’s 100th day in office. Speaking to a joint session of Congress last night, President Biden unveiled his new $1.8 trillion American Family Plan. Combined with his $1.9 trillion American Rescue Plan, already signed into law, and his $2.5 trillion American Jobs Plan, currently being negotiated, it brings the total of proposed new spending to $6.1 trillion in just 100 days.

Ahead of President Biden’s speech last night, NAW released a statement regarding President Biden’s unprecedented $6 trillion in new government spending proposals that will kill more American jobs and businesses. To read the full statement from Eric Hoplin, NAW President and CEO, click HERE.

As you have most likely read, the proposed American Families Plan includes funds for childcare, paid family and medical leave, universal pre-kindergarten schooling, tuition-free community college and nutritional assistance pared with a four-year extension of the expanded child tax credit enacted in the March Covid-relief bill. President Biden’s new plan would be paid for by increasing taxes on both income and capital gains and by increased enforcement of current tax law.

The proposal would also significantly change inheritance tax law. Most of the reporting on the proposal notes that, in addition to raising the top capital gains tax rate to 39.6%, the plan would eliminate stepped-up basis on inherited assets of estates over $1 million to ensure that capital gains taxes are based on the decedent’s cost basis in the asset.

Under current law, capital gains taxes on inherited asset are paid only when the heirs sell the assets. Significantly, and most often NOT included in the reporting on the Biden plan, is that it would require that the estate pay the capital gains taxes at death, effectively deeming the assets to be sold. There are also at least two proposals in Congress that would similarly amend estate tax law to require the payment of taxes on built-up gains without the sale of the assets.

Obviously, the taxing of capital gains at death would negatively impact the ability of a business or farm owner to pass that business or farm to heirs. The Biden plan acknowledges that reality and says it will offer “protections” to privately-owned businesses so their heirs can inherit the business, but the plan offers no details or specifics on what those protections would be.

If you are interested in more information on the capital gains tax at death issue, the Congressional Research Service has prepared a good analysis which you can read HERE.

Another key component of the Biden tax plan is its emphasis on tax enforcement to increase the collection of owed-but-unpaid taxes. They would accomplish this in part by a massive increase in the IRS budget to allow significantly more audits of upper income earners. Another part of the proposal would require banks to provide information to the IRS on the financial transactions of account holders, both business and individual. The Administration has provided no additional information or details on this particular proposal, so it is not yet known what type or size transactions the banks would be required to report to the IRS.

We will of course be closely watching as Congress begins writing the legislation that will provide specifics and details on the many as-yet-unspecified parts of the Biden proposal.

  • To read the White House Fact Sheet on the American Family Plan, click HERE.
  • Bloomberg has prepared a summary of the American Family Plan which you can read HERE.

2. Latest on the Other Issues Impacting NAW Members

OSHA Prepares to Issue COVID-19 Emergency Regulations:

On Tuesday, the Department of Labor sent a draft OSHA Covid-19 Emergency Temporary Standard (ETS) to the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA). This is the first step in issuing an ETS. It is anticipated that the OIRA review will move quickly but it is likely to take a minimum of two weeks. As you may remember, shortly after taking office President Biden issued an executive order directing the Department of Labor (DOL) to decide whether to issue a Covid-19 emergency workplace rule by March 15th.

Although neither OIRA nor DOL has made the contents of the ETS public, the Coalition for Workforce Safety (CWS) – of which NAW is a member – will be meeting with ORIA to provide a stakeholder perspective and present general concerns about the ETS. As you may remember, NAW was a signatory on a letter regarding an ETS last year. You can view the letter HERE. As more information becomes available, NAW will continue to update you on this issue.

Also of note, several management law firms are closely following this issue, and there is a high likelihood that litigation will be filed to challenge an aggressive ETS. NAW and other trade associations could well be participants in a court challenge if one is initiated.

Biden Administration Orders $15 Minimum Wage for Federal Contractors:

This week, President Biden signed an Executive Order (EO) requiring federal contractors performing service, construction, or concession contracts to pay a $15 minimum wage to those employees who are working on those contracts.

Beginning January 30, 2022, all federal agencies will need to ensure that the $15-per-hour minimum wage is included in any new covered contract solicitations, and by March 30, 2022, all agencies will need to implement the minimum wage in new covered contracts. Additionally, contracting officers must implement the higher wage in existing covered contracts when exercising options and extensions.

To read the White House fact sheet, click HERE.

To read an in-depth report on the EO provided by the McGuireWoods firm, click HERE.

3. Latest on the Vaccine Distribution

NAW is actively involved in the vaccine distribution issue, working with member companies in a joint effort to get the government to involve the entire wholesale distribution industry in the vaccine distribution effort.

State and Local Vaccine Distribution Tracker by Littler Law Firm:

As with nearly everything about this pandemic, guidance and action plans vary by state and local jurisdictions and are constantly evolving. To that end, Littler Law Firm provides links to state agency websites, vaccine allocation plans, and other guidance related to the rollout of COVID-19 vaccines, as well as basic vaccination plan phases. To see the latest updates, click HERE.

Additional Vaccine Distribution Resources:

We included additional information and resources on vaccine distribution in an earlier update, which you can access HERE.

4. Latest on the 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:

Webinar from Littler Law Firm:
President Biden’s First 100 Days in Office
Thursday, May 6, 2021 | 10:00 am-10:45 am PDT

With the inauguration of President Joe Biden as our nation's 46th president, together with Democratic-controlled houses of Congress, this presentation will discuss expected and potential reforms and how the first 100 days are playing out under the Biden administration.

Topics covered include:

  • COVID-19 relief package
  • Executive order action
  • Personnel/nominations
  • Impact on labor agencies (DOL, NLRB, EEOC)
  • What administration workforce priorities and initiatives can employers expect in the coming year

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.

April 22, 2021

1. Latest on the Vaccine Distribution

NAW is actively involved in the vaccine issue, working with member companies in a joint effort to get the government to involve the entire wholesale distribution industry in the vaccine distribution effort.

Tax Credits Available to Provide Paid Leave to Employees Receiving COVID-19 Vaccines:

On Wednesday, President Biden announced that businesses with fewer than 500 employees will be reimbursed for any paid time off they provide employees — up to $511 per day per employee. The paid tax credit is funded by the American Rescue Plan signed into law last month. Businesses and nonprofits may receive a tax credit for up to $511 per day of paid sick leave that employees take to get the shot or recover from its side effects from April 1st through September 30th.

Guidance for small businesses on the tax credit is available on the IRS website HERE.

In February, NAW, along with 42 of our downtown allies, sent a letter to the Equal Employment Opportunity Commission (EEOC) requesting that they quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans With Disabilities Act and other laws enforced by the EEOC. To date, we have not yet received a response to our letter and no guidance has been released.

President Biden also called on all employers, regardless of size, to offer paid leave for their workers to get vaccinated, as well as urging companies to provide information about the shots and incentives to get them, like product giveaways or other rewards. "I’m calling on every employer large and small in every state to give employees the time off they need, with pay, to get vaccinated," President Biden said in a statement. "No working American should lose a single dollar from their paycheck because they chose to fulfill their patriotic duty of getting vaccinated," Biden added. To read President Biden’s full statement, click HERE.

NAW Initiatives on Vaccine Distribution: NAW & NFL Expand Partnership in Support of COVID-19 Vaccination NAW and wholesaler-distributors have continued to provide critical donations of supplies and PPE to NFL stadium vaccination sites across the country. The partnership has expanded to include 7 teams (Detroit Lions, Pittsburgh Steelers, Carolina Panthers, Atlanta Falcons, Seattle Seahawks, San Francisco 49ers, and Houston Texans), with donor distributors contributing over $450,000 worth of gloves, sanitizer, masks, wipes, and other products used to administer vaccinations.

The NFL announced recently that over two million people received vaccinations at a stadium site, and NAW is proud to lead the distribution industry in supporting the American recovery through these collective efforts. If you are interested in joining the NAW-NFL partnership, e-mail NAW’s Chief Business Development Officer, Dan Schuberth, at dschuberth@naw.org.

State and Local Vaccine Distribution Tracker by Littler Law Firm: As with nearly everything about this pandemic, guidance and action plans vary by state and local jurisdictions and are constantly evolving. To that end, Littler Law Firm provides links to state agency websites, vaccine allocation plans, and other guidance related to the rollout of COVID-19 vaccines, as well as basic vaccination plan phases. To see the latest updates, click HERE.

Additional Vaccine Distribution Resources: In a previous update, we included additional information and resources on vaccine distribution, which you can access HERE

2. Latest on the Infrastructure/Business Tax Legislation

The first bill – the President’s American Jobs Plan: This week, President Biden asked Republican lawmakers to come to the negotiating table with their ideas for an infrastructure package. Based on what we learned from conversations with members of Congress and/or their staff, the rough draft of the Republican counteroffer was a proposal to spend approximately $600 billion dollars with a focus on brick and mortar, or “hard,” infrastructure.

The specifics of the proposed program spending consist of:

  • $299B for roads and bridges
  • $61B for public transit
  • $65B for broadband infrastructure
  • $44B for airports
  • $35B for drinking water and wastewater
  • $20B for rail systems
  • $13B for safety
  • $17B ports and inland waters
  • $14B for water storage

Unfortunately, some leading progressive Democrats rejected the GOP plan sight unseen – without there even being an actual detailed plan to present. Senator Elizabeth Warren (D-MA) said that “the Republican proposal does not meet the moment” – despite the fact that $600 billion is significantly more funding than any surface transportation legislation that has passed in recent memory. The Republican proposal is said to be paid for with user fees, such as an increase in the gas tax or a vehicle miles traveled (VMT) program, as well as unspent coronavirus relief funds. Administration offices have indicated that they would rather raise the corporate tax rate to 28 percent as a pay-for, so that President Biden can keep his pledge to not raise taxes on anyone making less than $400,000.

As of now, President Biden is continuing a dialogue with Congressional Republicans on a way forward on an infrastructure package, even without the participation of most of his Democrat Congressional colleagues. If talks between the White House and Republicans fail to produce an agreement, Democrats in Congress will turn again to their plan to pass an infrastructure bill through budget reconciliation – with no GOP input or votes. Success in that effort is not completely certain, since they would need the support of all 50 Democratic Senators and at least one – Joe Manchin of WV – has expressed reservations about using the reconciliation process. But if they should succeed, the result will be a bill much closer to the President’s more-than-2-trillion-dollar proposal, with business tax increases in the $1.5 trillion rage.

The second bill – the President’s American Family Plan: A second major spending-and-tax-increase bill is expected to be announced by the President next week, we believe just before his April 28th address to Congress. This second bill – sometimes referred to as the “human” or “social” infrastructure bill, will include an as-yet-unspecified amount of spending on social welfare, health care, and education. This spending will be “paid for” with significant increases in taxes on the individual side of the tax code, focused on increased taxes on upper income earners and the wealthy. We do not yet know what specific tax increases will be proposed, although we expect to see many of the Biden campaign tax increases in this bill, i.e., an increase in the top rate from 37% to 39.6% and an increase in the capital gains tax rate for upper income earners. Other tax proposals being offered or discussed by members of Congress include significant changes in the estate tax and repealing or rolling back the 199A deduction used by pass-through businesses. We will update NAW members as soon as we obtain reliable information on the details of this next bill. 

3. Latest on the 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 Littler Law Firm:

Arizona Joins Other States in Passing COVID-19 Liability Protection for Businesses

Arizona Governor Doug Ducey recently signed Senate Bill 1377 after a push from Republican legislators to limit civil liability exposure for “Good Samaritans” who have worked to protect and provide for Arizonans during the COVID-19 health crisis. To read more, click HERE.

Webinar from Littler Law Firm:

Not All Who Wander Are Lost: Managing Employee Relocation in the Era of Remote Work

Thursday, April 29, 2021 | 8:45 am-10:00 am EDT

American workers are on the move! According to one study, between 14 and 23 million Americans plan to relocate because of the increased opportunities for remote work resulting from the COVID-19 pandemic. But do employers know where their workers will be? To register, click HERE.

Public Hearing from the U.S. Equal Employment Opportunity Council: The U.S. Equal Employment Opportunity Commission (EEOC) will hold its first all virtual Commission hearing on Wednesday, April 28, at 10:30 a.m. (Eastern Time) to consider the impact of the COVID-19 pandemic on workers, the difficulties faced by employers in navigating potential employment discrimination issues raised by COVID-19, and future challenges the pandemic may present for employees and employers.

The hearing will be held virtually, as a videoconference, via Zoom for Government and is open to the public, in accordance with the Sunshine Act. The public may observe the livestream or connect to the audio-only dial-in by following the instructions that will be posted on www.eeoc.gov. The links and audio-only dial-in information is to be posted on Monday, April 26 and no later than 24 hours prior to the hearing.

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.

March 26, 2021

1. Latest on the COVID-19 Relief Legislation

On Saturday, NAW is actively involved in the vaccine distribution issue, working with member companies in a joint effort to get the government to involve the entire wholesale distribution industry.

NAW Initiatives on Vaccine Distribution

Yesterday, NAW and wholesaler-distributors across the country announced a partnership supporting mass vaccination sites at multiple NFL stadiums with donations of needed personal protective equipment and other items, including gloves, sanitizer, pumps, masks, shields, and wipes. The first mass vaccination sites to receive donations were the Detroit Lions’ Ford Field and the Pittsburgh Steelers’ Heinz Field. NAW is currently sourcing items for additional teams including the Atlanta Falcons, Carolina Panthers, and Seattle Seahawks.

To read NAW's press release, click HERE.

State and Local Vaccine Distribution Tracker by Littler Law Firm

As with nearly everything about this pandemic, guidance and action plans varies by state and local jurisdictions and are constantly evolving. To that end, Littler Law Firm provides links to state agency websites, vaccine allocation plans, and other guidance related to the rollout of COVID-19 vaccines, as well as basic vaccination plan phases. To see the latest updates, click HERE.

2. Latest on the Other Issues Impacting NAW Members

Payment Protection Program (PPP)

The Paycheck Protection program, enacted a year ago, has been extended several times, and was set to expire on March 31. Last week the House of Representatives passed yet another extension of the program.

Yesterday in the Senate an amendment to the legislation was offered by Senator John Kennedy (R-LA) to bar loans for anyone “convicted of a felony in relation to a riot or civil disorder during the two-year period preceding the date of the application.” And Senator Marco Rubio (R-FL) offered an amendment to limit the SBA’s ability to prioritize any particular category of borrower over another. Both amendments failed on almost-party-line votes.

Following defeat of the amendments, the Senate passed the House bill, extending the program until May 31, with the SBA having until June 30 to process loans. The President is expected to sign the bill when it reaches his desk.

American Recovery Plan (ARP - the Biden COVID Response Legislation) and State Taxes:

As you know, the ARP enacted into law this month included $350 billion in aid to the states and localities. The provision was very controversial, in large measure because at least 31 states reported no revenue shortfall and therefore had no need for federal aid. According to early data analysis by the Tax Foundation, “states closed out calendar year 2020 with only $1.7 billion less revenue than they generated in 2019 (a decline of less than 0.2 percent), not counting federal assistance, while municipal governments actually experienced substantial revenue growth due to rising property values.”

In response to the controversy over the state aid, Senate Majority Leader Chuck Schumer (D-NY) offered an amendment that would prohibit any state receiving federal aid from cutting state taxes – directly or indirectly. The amendment was offered at the last minute, with no notice, after a marathon 24-hour Senate session. Senators becoming aware of the amendment after the bill was passed reacted angrily to its inclusion. And the reaction from the states, especially those in which state legislatures were already considering tax legislation, was even stronger. Questions immediately arose as to the constitutionality of the federal government mandating what legislation a state legislature may enact.

As of this writing, at least one state attorney general has filed a lawsuit challenging the Schumer language, and 21 additional attorneys general have notified Treasury that they will consider a legal challenge if Treasury does not narrow the broad scope of the language. How this issue will impact your state taxes remains to be seen.

Protecting the Right to Organize (PRO) Act:

Earlier this year the House of Representatives passed the Protecting the Right to Organize (PRO) Act, which is the most pro-labor piece of legislation in decades. This radical legislation would impose policies that were rejected by the judicial system, opposed on a bipartisan basis in Congress, and/or abandoned by the agencies asked to enforce them. Unions continue to push this legislation to unfairly tip the playing field in their favor at the expense of the fundamental rights of workers to choose for themselves whether to accept or reject union representation.

Currently, 45 Senators have co-sponsored the Senate companion legislation, which Senate Majority Leader Chuck Schumer (D-NY) has publicly stated will be brought to the floor of the Senate once it has 50 co-sponsors.

This could well be the issue on which Democrats act on their threat to abolish the legislative filibuster, which would allow them to pass the entire Biden agenda, including trillions of dollars of tax increases, with no involvement of the GOP minority and no Republican votes. NAW will continue to update you about this legislation as warranted.

NAW Applauds Introduction of INFORM Act:

On Tuesday, NAW joined with the Buy Safe America Coalition, a diverse group of retailers, consumer groups, wholesaler-distributors, and manufacturers in publicly declaring support of the introduction of the INFORM Consumers Act, legislation to increase transparency and accountability for online marketplaces amid the rapidly growing problem of illicit goods sold online. This bill would modernize consumer protection laws and require online marketplaces to collect and verify basic business information from sellers, in addition to requiring high-volume sellers to provide contact information to consumers.

To read NAW’s press release and to learn more about the bill, click HERE.

3. 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 Reed Smith Law Firm:

New York eliminates quarantine for domestic travel effective April 1

New York is doing away with its quarantine requirement for out-of-state travelers. By way of background, in June 2020, New York issued a COVID-19 Travel Advisory requiring certain travelers to quarantine upon entry to New York. In November 2020, New York modified its travel advisory to permit out-of-state travelers to test out of its mandatory quarantine... Continue Reading

From McGuireWoods Law Firm

Telehealth: How the Pandemic Is Shaping the Future of Remote Healthcare

March 25, 2001

About 475 million people worldwide have received a COVID-19 vaccine, and a return to normalcy draws closer. What remains unclear, however, is how state and federal governments will regulate and reimburse for telehealth when temporary telehealth policies expire at the end of the public health emergency. Read on for a summary of proposed federal regulatory and legislative trends and state legislation that offer clues into telehealth’s post-pandemic future. To read more, click HERE.

From Nixon Peabody Law Firm:

What Employers Need To Know About the New COBRA Subsidy

For six months beginning April 1, 2021, the federal government will subsidize 100% of the cost of COBRA coverage for individuals who lose their health coverage due to an involuntary termination or reduction of hours. Nixon Peabody explains this new subsidy and what employers need to know to administer it. To read more, click HERE.

From Littler Law Firm:

New York Enacts Paid Vaccine Leave Law

On March 12, 2021, Governor Andrew Cuomo signed legislation providing all public and private employees in New York up to four hours of paid leave per vaccine injection to obtain a COVID-19 vaccine. To read more, click HERE.

From Reed Smith Law Firm:

California requires new COVID-19 Supplemental Paid Sick Leave in 2021

On March 19, 2021, Governor Newsom signed Senate Bill 95 (SB 95), which creates, in part, new Labor Code Section 248.2.[1] As a reminder, Governor Newsom previously signed AB 1867, which added Labor Code sections 248 and 248.1 to provide COVID-19 Supplemental Paid Sick Leave to food sector workers and employees who worked for employers... Continue Reading

From Reed Smith Law Firm:

New Jersey issues guidance confirming employers can mandate COVID-19 vaccines

New Jersey has confirmed that employers can mandate their employees be vaccinated for COVID-19. This move aligns New Jersey with federal guidance previously issued by the EEOC. Other states, such as California, have also issued similar guidance and the trend is expected to continue. Consistent with federal guidance from the EEOC, the New Jersey guidance... Continue Reading

From Reed Smith Law Firm:

Congress extends payroll tax credits to employers voluntarily providing FFCRA paid leave and expands leave provisions

As of January 2021, providing FFCRA paid leave is optional. Employers choosing to provide FFCRA Paid Leave to their employees on a voluntary basis can now receive a payroll tax credit to cover the wages paid through September 30, 2021 (subject to applicable caps). Last year, in response to the COVID-19 Pandemic, Congress passed the... Continue Reading

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.

March 3, 2021

1. Latest on the COVID-19 Relief Legislation

On Saturday, the Senate approved a $1.9 trillion coronavirus relief package in a remarkable Senate session, and the House passed the Senate version of the bill yesterday. The President signed the bill this afternoon, one day earlier than expected.

A lot has been written about the bill, but much is still to be learned and as details come out, there are some surprises… The Senate process by which the bill was considered was remarkable and record setting… Democrats argue the legislation is exactly what Americans and the economy need… Republicans condemn the bill as an irresponsible spending spree largely unrelated to the pandemic. There’s little argument that the fiscal consequences of this spending will be felt for years to come.

We have not attempted to prepare a detailed summary of the many-hundred-page-bill, but have assembled some information that might interest you, and which you may not read in conventional news coverage. For example:

  • The bill included three business tax increases that no one knew were there
  • The Senate cast a vote that took almost 12 hours to complete
  • The billions of aid for schools is not tied to schools re-opening
  • Most of the Senate voters were 50-49, not 50-50 ties that would have required Vice President Harris to cast tie-breaking votes during a marathon 24-hour Senate session

You can read our brief report on these and other related items HERE.

2. Update on PPP - State "Decoupling" Issue

The CARES Act provided that forgiven PPP loans would not be taxable, and after an aggressive lobbying effort by NAW and our business allies, Congress passed legislation clarifying that the IRS could not tax PPP loans indirectly by denying the tax deductibility of business expenses paid for with a forgiven PPP loan. However, some states are “decoupling” their state tax law from the CARES Act provisions by treating forgiven PPP loans as taxable income and/or denying deductibility of expenses paid with forgiven PPP loans. The Tax Foundation has prepared an analysis of how each state is handling the issue of PPP taxability, which they are updating frequently. You can access that useful Tax Foundation report HERE.

3. Latest on the Vaccine Distribution

Earlier this week, NAW sent a letter to White House Senior Advisor for COVID Response Andy Slavitt reiterating the role distributors play in the economy and how we can help with vaccine distribution and other COVID relief efforts. We continue to focus on highlighting the role distributors are playing in helping America’s recovery and offering to do more to help move the country forward. To read the letter, click HERE.

NAW and our member companies are partnering with the National Football League to support mass vaccination sites in stadiums across the country. When fully operational, these sites will have the capacity and vaccine supply provided by FEMA to vaccinate thousands of people each day. NAW is actively building a coalition of distributors who are committed to accelerating the administration of the vaccine and can help the NFL secure items needed to operate these mass vaccination sites. Needed items include liquid hand sanitizer (preference for larger volume pump containers), disinfectant wipes, disposable face masks, medical grade gloves (nitrile or vinyl material), and medical waste containers (disposal plastic sharps bins).

If you would like to join us and have the ability to donate or serve as a source for purchase for any of these items, please contact NAW’s Chief Business Development Officer Dan Schuberth ( dschuberth@naw.org, 732-585-3010).
State and Local Vaccine Distribution Tracker by Littler Law Firm:

As with nearly everything about this pandemic, guidance and action plans vary by state and local jurisdictions and are constantly evolving. To that end, Littler Law Firm provides links to state agency websites, vaccine allocation plans, and other guidance related to the rollout of COVID-19 vaccines, as well as basic vaccination plan phases. To see the latest updates, click HERE.

Additional Vaccine Distribution Resources:

In a previous update, we included additional information and resources on vaccine distribution, which you can access HERE.

Specific Employer Issues:

In a previous update we mentioned that NAW, along with 42 of our downtown allies, sent a letter to the Equal Employment Opportunity Commission (EEOC) requesting that they quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans With Disabilities Act and other laws enforced by the EEOC. We are still waiting on a response from the EEOC, and we will update you again as soon as we receive it.

4. Latest on the Other Issues Impacting NAW Members

Protecting the Right to Organize (PRO) Act:

This week, Democrats in the House of Representatives passed the Protecting the Right to Organize (PRO) Act, a labor boss wish list that was written to increase union membership at any cost.

This radical smorgasbord of pro-union legislation has been a top priority of labor unions for several years and was passed primarily along party lines. Although, the following five Republicans voted for the bill: Jeff Van Drew (NJ); Chris Smith (NJ); Brian Fitzpatrick (PA); John Katko (NY); and Don Young (AK); and one Democrat voted against: Henry Cuellar (TX).

Although many think that the measure is unlikely to win the 60 votes needed for passage in the Senate, that is certainly not a guarantee. Several of the newly elected Democratic members of the Senate have already co-sponsored the Senate companion bill and the executive board of the AFL-CIO has stated that it is exploring its position on eliminating the filibuster to pass the PRO Act.

From Reed Smith Law Firm:
Labor law under the Biden administration: A preview of the PRO Act
At a union event on Labor Day in 2020, President Biden vowed to be “the strongest labor president you have ever had.” Although he has only been in office a short time, his administration is already taking steps to honor that pledge. Specifically, on February 4, 2021, House and Senate Democrats introduced the Protecting the… Continue Reading

Infrastructure and Reconciliation:

COVID legislation and infrastructure were the top items on President Biden's list of issues that should be taken up on a bipartisan basis. Unfortunately, as you know, Congress chose to move a completely partisan COVID bill without Republican input or votes. While the President continues to talk about a bipartisan infrastructure approach, and has met with Republicans on it, there are troubling signs in recent days.

The original price tag on an infrastructure bill was about $2 trillion, which was already enough to worry both Republicans and Democrats who have expressed concern about the extraordinary federal spending legislation enacted in the last year. Nevertheless, in the last few days House Democrats have begun talking about an infrastructure bill of closer to $4 trillion. And Senator Joe Manchin (D-WV), Chair of the Senate Committee responsible for most of the infrastructure issue, said that he could support a $4 trillion bill if it was paid for with tax increases.

While Senator Manchin continues to say he will not support a partisan approach to infrastructure and will not consider using reconciliation to pass a bill, Republicans and some Democrats are certain to oppose a big tax increase bill, and House Democrats are suggesting that reconciliation is the path they will pursue.

There is broad and deep support throughout the business community for a long-overdue infrastructure bill, but there is also broad and deep opposition to raising taxes on businesses, especially as the economy continues to recover from the pandemic. Combining a highway bill with trillions of dollars in new business taxes would make it very difficult for much of the business community to get behind the much-needed legislation.

Business Insider published an interesting story on Senator Manchin and infrastructure, with the blaring headline: Senator Joe Manchin says Biden's infrastructure bill can be as large as $4 trillion as long as it's paid for with tax increases. You can read that story HERE.

5. Latest on the 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:

Webinar from Littler Law Firm:

Navigating Difficult FMLA and ADA Issues in the Middle of a Pandemic

Tuesday, March 16, 2021 l 10-11am PDT

The COVID-19 pandemic has left an indelible impact on the workplace, causing employers to deal with a wave of medical leaves and a shift to virtual workplace. And now, with the roll-out of the vaccines, there are added wrinkles of whether to mandate them and possibly accommodate employees who challenge use of the vaccines. As a result, employers face a host of compliance issues in navigating vaccine, leave and accommodation issues. To register, click HERE.

From Reed Smith Law Firm:

COVID-19 in New York one year later: An overview of employer obligations still in-effect
As we approach the one-year anniversary of COVID-19’s upheaval of “business as usual,” we continue to field inquiries from Empire State employers regarding their pandemic-related workplace obligations. Given that many of the pandemic-related regulations remain fully in effect, we have summarized in this blog post the primary employer obligations that remain in-effect in New York… Continue Reading

From Bloomberg:

Employer COVID-19 Vaccine Incentives – A Difficult Dilemma: Legal Insight

Some employers are offering incentives to employees to get vaccinated against COVID-19, like bonuses, days off, or gifts. R. Anthony Prather, partner at Barnes & Thornburg LLP, warns that may work, but could lead to legal problems. Employers face a difficult choice: They can offer de minimus incentives that don’t really incent or offer larger incentives and open the company up to allegations of coercion or discrimination. To read the full article, click HERE.

From Reed Smith Law Firm:

Employers face challenges as states lift COVID-19 safety measures

The recent decline in COVID-19 infections has led numerous states to begin contemplating a roll‑back of mask mandates and related COVID-19 restrictions. Most recently, on Tuesday, March 2, 2021, Governor Greg Abbott and Governor Tate Reeves announced the imminent elimination of mask mandates in Texas and Mississippi, respectively. Both Governors also removed all capacity limits… Continue Reading

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.

February 25, 2021

1. Latest on the Vaccine Eligibility and Essential Services

As you all know all too well, the federal government deferred much of the decision-making on administration and eligibility of the COVID vaccine to the states and localities, making it very difficult for companies deemed essential last year to ensure that their employees are eligible to get the vaccine. While we have not found a way to streamline the process, we hope these resources will help you navigate the maze.

Essential Services: The Cybersecurity and Infrastructure Security Agency (CISA), which determined the guidelines for essential services at the beginning of the pandemic, announced in a D ecember 16th memorandum that those essential service designations would apply to vaccine distribution as well. Also, in that memo CISA re-published its comprehensive list of those essential services. You can read their memo and essential services guidelines HERE.

Vaccine Eligibility Determinations: The Centers for Disease Control (CDC), following the recommendations of the Advisory Committee on Immunization Practices (ACIP), published information on how individuals and groups would be determined to be eligible for the vaccine. Eligibility was broken down into phases, and the first phase into subgroups – 1a, 1b, and 1c.

CDC has published a comprehensive list of the post-1a group eligibility, which you can access HERE. While this list does include essential workers in categories 1b and 1c, it is a much shorter list than CISA’s and it isn’t clear whether the CDC simply lists essential services in much broader categories than CISA, or whether some essential services on the CISA list have been excluded from the ACIP/CDC list.

Federal Government Deferred Decision to States/Localities: Further complicating things, while the federal government retained full control over allocating the vaccine distribution, they deferred to the states not only the physical administration on the vaccine, but the final decisions on what they considered essential services. Specifically, according to the CDC, the critical infrastructure workforce varies by jurisdiction. Each jurisdiction must decide which groups to focus on when vaccine supply is limited by determining key sectors that may be within their populations (e.g., port-related workers in costal jurisdictions).

Last year, NAW sent a letter to governors urging them to follow the federal guidelines; on Tuesday, NAW CEO Eric Hoplin sent a similar letter to all governors urging them to follow the CISA essential services guidelines for vaccine administration. You can read the letter HERE.

Resources for Employers: Unfortunately, employers – even in essential service sectors – now must deal with state and/or local public health agencies to ensure that their employees are eligible for the vaccine.

There are some resources that should help determine your next steps:

  • The CDC has a website that provides links directly to the relevant health agency in each state with information on their vaccine programs. While we have not been able to find a single source for all the local government agencies administering the vaccine, many of the state agencies linked to on this site do provide that information for their state. CLICK HERE
  • The Kaiser Family Foundation has a particularly helpful website that provides detailed information on the degree to which each state is following the ACIP recommendations, and how they differ if they are not doing so. CLICK HERE
  • The Littler Law firm website provides a frequently updated list of Statewide Vaccination Plans. CLICK HERE

Template Letters: If you plan to contact your governor or local health department to request that your employees be deemed essential for vaccine eligibility, you might find this letter template helpful. This template is addressed to a governor but could just as readily be used to communicate with a local health department. Click HERE for the template.

Also, in the early weeks of the pandemic we provided template letters that your warehouse employees and drivers could carry to identify themselves as essential. Similarly, this template for a “carry letter” might be useful to your employees to identify themselves as essential when they become eligible and prepare to get the vaccination. Click HERE for this template.

We will continue to look for information and resources that might be helpful to you as the vaccine distribution and administration continues.

2. Latest on the 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:

NAW’s trusted employee benefits partner, Gallagher, compiled a collection of employer resources to assist wholesaler-distributors as they develop employee vaccination plans. Gallagher’s Employer Covid-19 Vaccine Considerations and Checklist document provides an employer vaccination policy framework, consolidates links to relevant health and regulatory agencies to assist with compliance, and shares management strategies as thinking on this issue evolves. You can find that document HERE.

Gallagher has also released a webinar that offers a deeper dive into the Covid-19 Vaccine Considerations and Checklist . Click HERE.

From Reed Smith Law Firm:

Brief refresher for California employers: 2021 updates to local COVID-19 paid sick leave requirements

The Families First Coronavirus Response Act (FFCRA), requiring employers with 50-500 employees to provide supplemental paid sick leave and paid family leave to their employees, and California’s statewide COVID-19 supplemental paid sick leave requirement expired on December 31, 2020. While employers may voluntarily continue to provide FFCRA and receive tax credits through March 31, 2021… Continue Reading

Webinar from Littler Law Firm:

Not All Who Wander Are Lost: Managing Employee Relocation in the Era of Remote Work

March 11, 2021 | 2:00 p.m. ET

As the pandemic reaches the one-year mark, employers who hastily implemented mandatory remote work are faced with the reality that many of their employees have relocated to other jurisdictions – often without approval or any concrete plans to return. Join a multidisciplinary panel of Littler attorneys for a lively discussion of the current challenge of wandering workers, practical insights into the future of managing a remote workforce and embracing flexibility without compromising compliance. 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.

February 2, 2021

1. Latest on the Next COVID-19 Relief Bill

Despite efforts for a bi-partisan COVID-19 relief bill, it looks as though President Biden and congressional Democrats will move forward with their $1.9 trillion relief bill, potentially without Republican support.

Yesterday, 10 Republican Senators met with President Biden to advocate for a much smaller alternative to his massive relief bill to address the pandemic. Both sides described the meeting as “productive,” however in a statement, White House Press Secretary Jen Psaki said President Biden had emphasized that Congress had to act urgently and “boldly” and had pointed out many areas of disagreement with the Republicans.

The Republican proposal included $160 billion for vaccine distribution and development, coronavirus testing and the production of personal protective equipment; $20 billion toward helping schools re-open; more relief for small businesses; and additional aid to individuals. The package would also extend enhanced unemployment benefits of $300 a week — currently slated to lapse in March — until June 30th .

Yesterday, Senate Majority Leader Schumer and House Speaker Pelosi introduced a fiscal 2021 budget resolution, which is the first step toward producing a reconciliation bill embodying President Biden’s relief plan. The first move for House Democratic leaders will be wrangling the votes for a budget measure this week — a critical step that unlocks the ability to pass bills with a simple majority in the Senate. But it will also require a near-perfect vote-counting operation, as Speaker Pelosi cannot afford more than four Democratic defectors on the floor if all Republicans oppose. Senate Leader Schumer is turning his attention to Senators Kyrsten Sinema and Joe Manchin, two moderate Democrats who have not yet said how they will vote on the budget resolution. If either Senators Manchin or Sinema opposes the budget maneuver, it could force the Democratic leadership to ditch the reconciliation process altogether.

Currently, neither President Biden’s plan nor the Republican proposal includes liability protections for businesses. Senate Minority Leader McConnell made it clear in December, just before Congress passed a $900 billion relief plan without liability protection, that any new relief bill this year must include protections for businesses, universities, and health care providers. NAW is currently working with our Liability Coalition to ensure that any relief bill this year includes liability protections.

2. Latest on PPP and Employee Retention Tax Credit

The IRS has issued new guidance for companies which had PPP loans that were NOT forgiven, allowing them to take the ERTC for the 4th quarter.

You can access the IRS guidance HERE and a story on the available credit from Accounting Today HERE.

3. Latest on COVID-19 OSHA Guidance for Employers

Late last week, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) released updated and stronger guidance for employers and employees on identifying coronavirus exposure risks. DOL has stated that the recommendations are “advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace."

You can view the updated OSHA guidance HERE.

However, President Biden’s Executive Order of January 21st also instructed OSHA to determine whether a new, temporary, mandatory COVID-related health standard is necessary, and if so, to implement that standard by March 15th.

4. Latest on Enhanced Employment Benefits

Last week, President Biden issued an Executive Order (EO) instructing the U.S. Department of Labor to issue new instructions to state unemployment agencies that will allow individuals to claim unemployment benefits even if they quit their jobs because they felt unsafe working during the pandemic. To date, the DOL has not issued new guidance.

According to the White House fact sheet, the executive order states:

… President Biden believes that workers should have the right to safe work environments and that no one should have to choose between their livelihoods and their own or their families’ health. … [T]he President is asking the Department of Labor to consider clarifying that workers have a federally guaranteed right to refuse employment that will jeopardize their health and if they do so, they will still qualify for unemployment insurance.

The relief package passed by lawmakers in December provided $300 per week in enhanced unemployment benefits that will be available until the end of March. However, President Biden is seeking to extend the termination date from March until at least September as part of his anticipated stimulus bill.


5. Latest on Paid Leave Benefits

Last March, the Families First Act mandated that workers be eligible for up to 2 weeks of fully paid sick leave for those sick, quarantining, or taking preventive measures regarding the coronavirus, and 12 weeks of childcare leave to care for children whose school or day care closed, or family leave to care for a family member suffering from COVID-19. The federal government would provide tax credits to cover the cost to employers. Businesses with more than 500 employees were exempt from the mandate; businesses with less than 50 employees were exempt from the mandate but could receive the tax credits if they chose to offer such leave.

The COVID-19 relief bill passed in December extended those tax credits through March, without the requirement to provide such leave. President Biden’s relief plan would reinstate the mandate through September. It would also extend coverage by eliminating the exemptions for employers with more than 500 or less than 50 employees. Employers with less than 500 employees would be fully reimbursed for the cost of providing this benefit.

6. 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 theCenters of Disease Control:
COVID-19 vaccines are an important tool to help end this pandemic.

Check out CDC’s new COVID-19 Vaccination Communication Toolkit for Essential Workers to help build confidence in COVID-19 vaccines. Use these resources to educate your employees about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns. It will take all our tools to protect our essential workers against COVID-19.

Webinar from Littler Law Firm:

COVID-19 in the Workplace: Recent Developments and Compliance Challenges - Session Eleven

Friday, February 5, 2021 | 8:30 am-9:30 am PST

It has become apparent that COVID-19 is going to dominate employment and labor law issues for the foreseeable future. The American workplace has become the first frontier as the pandemic creates new legal issues – seemingly every day.

In response to the many questions that business leaders, human resources professionals, and in-house counsel have about facing these new legal challenges, Littler's Sacramento office created the “First Friday" webinar series. We invite a special guest to do a deep dive into a topic of particular interest and do our very best to leave a full 20 minutes at the end for an “open mic" question and answer session. To register, click HERE.

Webinar from Nixon Peabody Law Firm:

Vaccinating the Nation: What You Need to Know

Wednesday, February 17 | 4:00–5:00pm ET

Widespread vaccination offers a light at the end of the pandemic tunnel. However, it also creates some legal questions and challenges, including:

  • Encouraging and/or mandating vaccination for employees
  • Requiring proof of vaccination for admission to premises or venues, or for participating in certain activities
  • The interplay of masks and social distancing requirements with vaccination
  • Managing risks in interactions with guests, visitors, and customers

Every organization and business will need to confront these issues, which are further complicated by a slow and uneven rollout of vaccinations across the country.

Join Nixon Peabody for an informational webinar on February 17, as our cross-office, multi-practice team helps you navigate through the incredible opportunities and complexities as America ramps up its vaccination program. To register, click HERE.

From Reed Smith Law Firm:
New York employers may be “exposed” to COVID-19 workers’ compensation claims

In September 2020, the New York Workers’ Compensation Board (WCB) issued guidance related to COVID-19 claims and their compensability under the State’s workers’ compensation laws. This guidance is especially noteworthy because workers’ compensation claims are expected to increase substantially because of COVID-19. Byway of background, New York is one of the few… Continue Reading

From Littler Law Firm:
10 Months After Enacting the COVID-19 Paid Sick Leave Law, New York Issues Guidance Impacting a Majority of its Employers

The NY DOL has issued new guidance that seeks to clarify the benefits available to all employees (except those in the healthcare industry) under the NY COVID-19 Paid Sick Leave Law. To read more, click HERE.

From Reed Smith Law Firm:
Virginia enacts first in nation permanent COVID-19 workplace safety standard

Virginia is the first state in the nation to enact a permanent workplace safety standard for COVID-19. This permanent COVID-19 standard became effective Wednesday, January 27, 2021 upon publication after review and approval earlier in January by Governor Ralph Northam and the Virginia Department of Labor and Industry’s (DOLI) Safety and Health Codes Board. While … Continue Reading

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.

7. Latest on the Issues Unrelated to COVID-19

Department of Labor Ends Payroll Self-Reporting Program:

The DOL ended the Wage and Hour Division’s Payroll Audit Independent Determination (PAID) program that was launched in 2018. The program was created to allow employers to self-report federal minimum wage and overtime violation.

By self-reporting these violations some employers may have been able to avoid litigation and penalties; affected employees were prevented from initiating private actions against the employers and self-reported violations. Wage and Hour Division officials stated that one reason for the program’s ending was that the “program deprived workers of their rights.” NAW will continue to update you on changes to the Department of Labor’s employment policies.

CLICK HERE for links to previous updates.