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Senate Committees Consider Workplace Reentry, Business Liability and Financial Regulations

  • May 15, 2020

Senate hearing social distancing

Senate committee hearings on May 12 addressed Covid-19 issues including reopening businesses and schools, legal liability for businesses, and the role of financial regulations in combatting the economic repercussions of the pandemic.

A “new normal” for congressional hearings was on display as social distancing and remote testimony were put into effect, with lawmakers and witnesses meeting through video conferences to maintain social distancing protocols.

Workplace Re-Entry

  • The health risks associated with reopening places of work, education and recreation were explored during the Senate Health, Education, Labor and Pensions Committee hearing, "COVID-19: Safely Getting Back to Work and Back to School."

  • Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, testified that returning too quickly could “turn the clock back, rather than going forward” on the road to economic recovery.  (Stat, May 12)

  • According to Politico, a dozen states will see their stay-at-home orders or business restrictions expire between today and Monday (May 15 to May 18) at the same time other states surpass the two-week point since reopening.  Updated reports on reopening status are available from CNN and the New York Times.

  • The U.S. Chamber of Commerce has developed an interactive state-by-state map of re-opening guidance policies.

  • The Centers for Disease Control and Prevention posted new one-page “decision tool” guidance documents on Thursday that advise businessesrestaurants and bars,  mass transit systems, and other concerns on how to safely reopen during the pandemic.

Business Liability

  • Potential employer immunity and anticipated litigation related to Covid-19 were the focus of a Senate Judiciary Committee hearing on Tuesday, "Examining Liability During the COVID-19 Pandemic."

  • Republicans and Democrats expressed that enforceable federal guidelines from the Occupational Safety and Health Administration (OSHA) or Centers for Disease Control and Prevention (CDC), outlining proper health, safety, cleaning and other procedures, would likely be necessary to set standards for business conduct.  Senators also acknowledged that potential plaintiffs asserting liability claims would likely confront challenges in establishing that a business’s actions directly caused a Covid-related injury.   (Brownstein Hyatt Farber Schreck, May 14)

  • “One primary goal out of this hearing is to get the standards in place for business, for universities, for schools, whether they come from the CDC [or] OSHA,” Chairman Lindsey Graham (R-SC) said at the hearing.  Standards are needed so businesses “can understand what’s expected of them.  And if they do what’s expected, they don’t need to worry about getting sued. The big hole in the puzzle right now is the standard,” (The Hill, May 12)

  • The Judiciary hearing followed prior statements on employer liability from Republican congressional leaders that “these protections will be absolutely essential to future discussions surrounding recovery legislation” and that any coronavirus stimulus package will not pass the Senate without addressing business liability.  (Roundtable Weekly, May 1)

Financial Regulations

  • The Senate Banking Committee hearing on “Oversight of Financial Regulators” focused on the effectiveness of recent financial regulatory actions implemented to combat the economic impact of the pandemic.

  • Lawmakers shared the sentiment that more could be done by U.S. financial regulatory agencies to broaden the availability of various lending facilities put into effect to get more capital to businesses and communities in need.

  • During the hearing, Fed Vice Chairman for Supervision, Randy Quarles, responded to questions on the need for expanding the Fed’s Term Asset-Backed Securities Loan Facility (TALF) by saying there were no “specific changes to suggest” at this time, but that the Fed was “very sensitive to that.”

  • The Roundtable joined industry letters to the Fed on March 24 and April 14 on the need to broaden the range of the TALF to include both outstanding (legacy) CMBS, commercial mortgage loans and newly issued collateralized loan obligations.  On April 9, the Fed confirmed that the TALF would be expanded to include triple-A rated legacy non-agency CMBS and loans.

  • The Fed on May 12 also broadened the range of leveraged loans that can be used as collateral for the TALF.  The Fed will now accept new Triple-A rated collateralized loan obligations (CLOs) with leveraged loans, including refinanced loans and priced as far back as January 2019, as part of the TALF.  (Fed news release and Wall Street Journal, May 12)

Today, a business coalition including The Real Estate Roundtable wrote to financial regulators requesting they clarify their April 7 guidance encouraging financial institutions to work constructively with borrowers impacted by COVID-19.  Specifically, the coalition requests clarification that – in addition to traditional loan products – lending and financing arrangements, such as warehouse lines and repurchase agreements secured by multifamily and commercial real estate loans and commercial mortgage-related securities, are within the scope of the guidance in the Statement.  (Coalition letter, May 15)

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