The Government of Canada announced, on Monday, September 26, 2022, that after Friday, September 30, 2022, all requirements related to COVID-19 for entering Canada will expire. These include:
Providing proof of vaccination and other health information;
Mandatory usage of the ArriveCAN application;
Pre- or on-arrival testing and/or screening requirements;
Random testing at airports;
Monitoring and reporting if one develops COVID-19 symptoms;
Quarantine and isolation requirements.
As a result, as of September 30, 2022, persons entering Canada would still be required to follow local public health guidelines, where applicable. The removal of measures applies to all forms of travel, including by air, land (including rail), and sea, whether internationally bound or domestic.
Many of these requirements have been in place since early 2020, during the onset of the pandemic. Employers with employees traveling into Canada can be assured that such measures related to COVID-19 will no longer apply as of October 1, 2022. It is important to note that the Government of Canada did leave open the possibility of re-imposing measures if the situation regarding COVID-19 is seen as requiring it.
For more Coronavirus News, click here to visit the National Law Review.
On September 15, 2022, OSHA announced that it was expanding its criteria for entering employers into its Severe Violator Enforcement Program (“SVEP”). The updated SVEP directive is available here.
Previously, entry into the program was limited to cases involving fatalities, three or more hospitalizations, high-emphasis hazards, the potential release of a highly hazardous chemical, and enforcement actions classified as egregious.
Now, an employer can be entered into the program in cases involving two or more willful, repeat, or failure-to-abate violations, regardless of the hazard involved. They will continue to be subject to entry in the program in certain cases involving fatalities, three or more hospitalizations, and enforcement actions classified as egregious.
In light of this expansion, employers should review their compliance records and current health and safety practices and consider whether further actions are needed to mitigate enforcement risks.
Background
In 2010, OSHA created the Severe Violator Enforcement Program to “concentrate[] resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the original SVEP, OSHA would designate employers as “severe violators” if they were involved in an enforcement action:
Involving a fatality in which OSHA found one or more willful, repeat, or failure-to-abate violations;
Involving a catastrophe (three or more hospitalizations) in which OSHA found one or more willful, repeat, or failure-to-abate violations;
Involving a high-emphasis hazard in which OSHA found two or more high-gravity willful, repeat, or failure-to-abate violations;
Involving the potential release of a highly hazardous chemical in which OSHA found three or more high-gravity willful, repeat, or failure-to-abate violations; or
Classified by OSHA as “egregious.”
Employers entered into the SVEP were subject to consequences that included mandatory enhanced follow-up inspections, a nationwide inspection of related workplaces, negative publicity, enhanced settlement provisions, and the potential for federal court enforcement under Section 11(b) of the OSH Act.
Updated Criteria
Under the new criteria, employers will continue to be entered into the SVEP in enforcement actions involving a fatality or catastrophe in which OSHA found one or more willful, repeat, or failure-to-abate-violations and in enforcement actions classified as egregious.
In a departure from the original criteria, cases involving two or more high-gravity willful, repeat, or failure-to-abate violations will also be entered into the SVEP, regardless of whether they are linked to a certain hazard or standard. As a result of this change, OSHA expects that more employers will be entered into the SVEP.
Other Key Changes
In addition to expanding the criteria for entry into the SVEP, OSHA made key changes regarding follow-up inspections and removal from the SVEP.
Follow-up OSHA inspections must occur within one year, but not longer than two years after the final order. Previously, there was no required timeframe for conducting follow-up inspections.
Eligibility for removal will begin three years after the date an employer completes abatement. Previously, that period began running on the final order date.
If an employer implements an enhanced settlement agreement that includes the use of a safety and health management system that follows OSHA’s Recommended Practices for Safety and Health Programs, the employer can be eligible for removal after two years.
Implications
These changes signify that OSHA is prioritizing enforcement and intends to impose significant consequences on employers that repeatedly and/or willfully violate OSHA requirements. Employers should review their compliance records and current health and safety practices and evaluate whether additional action is needed to mitigate the risk for willful, repeat, or failure-to-abate violations and entry into the SVEP.
On September 7, 2022, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking (NPRM) that would, if adopted, make it much easier for the NLRB to find a company to be a “joint employer” of persons directly employed by its contractors, vendors, suppliers and franchisees. The consequences of a joint employer finding are significant and can lead to: liability for unfair practices committed by the direct employer; a duty to bargain with a union representing the direct employer’s employees; exposure to liability for one’s own conduct that fails to take into account the indirect employer relationship and spread of a union from the direct employer’s employees to the indirect employer.
Joint-employer theory creates far more risk for employers than related doctrines such as single employer or alter ego because, unlike those theories, joint employer status does not require any common ownership or corporate control. Two companies operating entirely at arm’s length can be found joint employers.
The major proposed change relates to the degree of influence that an indirect employer must have to justify a finding of single employer status. Under the current NLRB standard, the indirect employer must actually exercise “immediate and direct” control over key terms of employment, normally limited to wages, benefits, hours and termination.
The proposed rule relaxes that standard in three key ways. First, it eliminates the actually exercise requirement and states that possession of even unused authority can be sufficient.
Second, it does away with the immediate and direct requirement so that influence exercised by the indirect employer through the direct employer can be used to support a finding.
Third, it expands, beyond the list enumerated in the current rule, the types of employment terms control of which will justify a finding of joint employer status. The Obama Board had adopted the currently proposed standard by an NLRB decision, Browning-Ferris Inds. 362 NLRB No. 186 (2015). However, that decision was overturned by the Trump Board’s adoption of the current rule, 85 FR 11184, codified at 29 CFR 103.40, (Feb. 26, 2020). The proposed rule seeks to reinstate Browning-Ferrisas the governing law.
Because Browning-Ferrisand the NPRM endorse pre-1984 NLRB decisions regarding joint employer status, those decisions provide guidance for how the new rule may be enforced. The NLRB and courts frequently relied on what authority was given to the alleged indirect employer in its agreement with the contractor or vendor. Clauses that required or allowed the indirect employer to approve hirings, terminations or wage adjustments to contractor employees usually resulted in finding joint employer status. In addition, cost-plus arrangements, particularly those that were terminable on short notice were often found to support a joint employer finding. Finally, clauses allowing the indirect employer to set work schedules, production rates, or requiring contractor employees to abide by the indirect employer’s work rules and other policies governing conduct also were found supportive of joint employer status.
The proposed rule is still subject to comment and revision, but it is likely to be adopted without significant change. The comment and review period, which closes on November 21, 2022, provides a window in which savvy employers can assess the risks to their organization when the Rule goes into effect. A key step is to examine existing contractual relationships with vendors to identify and modify those terms that may potentially support joint employer status, or, if modification is untenable, to manage the risk through indemnity agreements with the vendor.
The Inflation Reduction Act of 2022 (“IRA”) signifies a turning point in domestic efforts to tackle climate change. Within the multibillion-dollar package are robust investments in climate mitigation initiatives, such as production tax credits, investment tax credits for battery and solar cell manufacturers, tax credits for new and used electric vehicles (“EV”)1, automaker facility transition grants, and additional financing for the construction of new electric vehicle manufacturing facilities.2 One thing is abundantly clear, the IRA’s focus on stimulating domestic production of electric vehicles means that the marketplace for electric vehicles will see a dramatic change. The Biden Administration has set an ambitious target of 50% of EV sale shares in the U.S. by 2030. However, if electric vehicles are going to achieve mass market adoption, a central question remains — where is the infrastructure to support them?
Addressing gaps in EV Supply and EV Infrastructure
As it stands, the shortage of charging infrastructure is a substantial barrier in the push for mass consumer adoption of EVs.3 Experts estimate that in order to meet the Biden Administration’s EV sale target by 2030, America would require 1.2 million public EV chargers and 28 million private EV chargers by that year.4 Department of Energy data shows that approximately 50,000 EV public charging sites are currently operational in the United States.5 In comparison, gasoline fueling stations total more than 145,000.6 However, federal legislation such as the Bipartisan Infrastructure Law (“BIL”) passed earlier this year signifies a clear commitment to remedying this disparity. The BIL establishes a National Electric Vehicle Infrastructure Formula Program (“NEVI”) to provide funding to States and private entities to deploy EV-charging infrastructure and to establish an interconnected network to facilitate “data collection, access and reliability.”7 The Federal Highway Administration, the federal agency charged with implementing NEVI, proposed minimum standards and requirements that states must meet to spend NEVI funds:
Installation, operation and maintenance by qualified technicians of EV infrastructure
Interoperability of EV charging infrastructure
Network connectivity of EV charging infrastructure
Data collection pertaining to pricing, real-time availability and accessibility8
The goal of the proposed rule is to secure EV charging infrastructure that works seamlessly for industrial, commercial and consumer drivers. Combining the historic investments in clean energy and climate infrastructure in the BIL and IRA, the federal government has jumpstarted what will be a fundamental shift in how consumers use transportation. Earlier this week, the Biden Administration announced more than two-thirds of EV Infrastructure Deployment Plans from States, the District of Columbia and Puerto Rico have been approved ahead of schedule under NEVI.9 With this early approval, these states can now unlock more than $900 million in NEVI funding from FY22 and FY23 to help build EV chargers across highways throughout the country.10
Section 13404’s Alternative Fuel Refueling Property Credit
Building up the U.S. capacity to build EVs, and then ensuring people can use said vehicles more easily by shoring up EV infrastructure is a crucial facet of the Inflation Reduction Act. Section 13404 of the IRA provides an Alternative Fuel Refueling Property Credit that targets the accelerated installation of EV charging infrastructure and assets.11 Section 13404 extends existing alternative fuel vehicle refueling property credit through 2032, and significantly restructures the credit by allowing taxpayers to claim a base credit of 6% for expenses up to $100,000 (for each piece refueling property located at a given facility) so long as the property is placed in service before Jan. 1, 2033.12 However, the alternative fuel property must be manufactured for use on public streets, roads and highways, but only if they are (1) intended for general public use, or (2) intended for exclusive use by government or commercial vehicles and (3) must be located in a qualifying census tract (i.e., low-income communities or non-urban areas).13 From a job creation standpoint, the IRA also provides an alternative bonus credit for taxpayers that meet certain wage requirements during the construction phase.14
The Future of EV Infrastructure
EV stations in city streets, parking garages and gas stations will become a prominent part of the nation’s infrastructure as it moves towards a green future. The effort will require coordination among municipal, state and federal policymakers. Even more, electric utilities must ensure that local infrastructure can support the additional strain on the grid. Utilities also have a direct interest in a cleaner, efficient, and less overburdened grid. Federal tax incentives, like the IRA, and subsides from states and local ordinances are integral to the implementation and construction of these networks. The private sector has already taken steps to do its part. In a recent study conducted by consulting company AlixPartners, as of June 2022, automakers and suppliers expect to invest at least $526 billion to fund the transition from gasoline powered vehicles to EVs through 2026.15 This is double the five-year EV investment forecast of $234 billion from 2020-2024.16 Even more, according to Bloomberg, not including deals that have disclosed financials, more than $4.8 billion has already been invested in the EV charging industry this year in the form of debt financing and acquisitions.17 Driven by fast growth and robust availability of government funds, financiers and large companies seeking to acquire EV charging companies, sense immense opportunity.18
FOOTNOTES
1“Electric Vehicle” is used interchangeably with the acronym “EV” throughout this article.
7 U.S. Department of Transportation/Federal Highway Administration. (n.d.). Bipartisan Infrastructure Law – National Electric Vehicle Infrastructure (NEVI) formula program fact sheet: Federal Highway Administration. U.S. Department of Transportation/Federal Highway Administration. https://www.fhwa.dot.gov/bipartisan-infrastructure-law/nevi_formula_prog…
8 The Office of the Federal Register of the National Archives and Records Administration and the U.S. Government Publishing Office. (2022, June 22). National Electric Vehicle Infrastructure Formula Program. Federal Register. https://www.federalregister.gov/documents/2022/06/22/2022-12704/national…
9 United States Department of Transportation. (2022, September 14). Biden-Harris Administration announces approval of First 35 state plans to build out EV charging infrastructure across 53,000 miles of Highways. United States Department of Transportation. https://highways.dot.gov/newsroom/biden-harris-administration-announces-…
10 See Id.
11 As a note, “refueling property” is property used for the storage or dispensing of clean-burning fuel or electricity into the vehicle fuel tank or battery. Clean-burning fuels include CNG, LNG, electricity, and hydrogen.
12 Inflation Reduction Act of 2022, H.R. 5376, 117th Cong. § 13404 (2022); See also Wells Hall III, C., Holloway, M. D., Wagner, T., & Baldwin, E. (2022, August 10). Nelson Mullins tax report–Senate passes Inflation Reduction Act. Nelson Mullins Riley & Scarborough LLP. https://www.nelsonmullins.com/idea_exchange/alerts/additional_nelson_mul…
Earlier this month, the FCC announced that its 2022 911 Reliability Certification System is now open for Covered 911 Service Providers to file annual reliability certifications. The filings are due on October 17, 2022. Failure to submit the certification may result in FCC enforcement action.
Background
In 2013, the FCC adopted rules aimed at improving the reliability and redundancy of the nation’s 911 network. Those rules require Covered 911 Service Providers (“C9SP”) to take steps that promote reliable 911 service with respect to three network elements: circuit auditing, central-office backup power, and diverse network monitoring. The Commission identified these three network elements as vulnerabilities following a derecho storm in 2012 that significantly impacted 911 service along the eastern seaboard.
Applicability. The rules apply to all C9SPs, which are defined as any entity that provides 911, E911, or NG911 capabilities such as call routing, automatic location information (ALI), automatic number identification (ANI), or the functional equivalent of those capabilities, directly to a public safety answering point (PSAP).
Certification. The rules require C9SPs to certify annually that they have met the FCC’s safe harbor provisions for each of these elements or have taken reasonable alternative measures in lieu of those safe harbor protections. The certification must be made under penalty of perjury by a corporate officer with supervisory and budgetary authority over network operations.
In 2018 and 2020, the FCC sought comment on changes to the 911 reliability certification rules, but the rules have not yet been updated as a result of those proceedings.
Enforcement Against Noncompliant Providers
Last year, the FCC entered into eight consent decrees with Covered 911 Service Providers that failed to submit their reliability certifications in 2019, 2020, or both. A Consent Decree typically requires the recipient to admit it violated an FCC rule, pay a fine to the federal government, and implement a Compliance Plan to guard against future rule violations. These Compliance Plans required the C9SPs to designate a compliance officer, establish new operating procedures, and develop and distribute a compliance manual to all employees.
Additionally, the providers were required to establish and implement a compliance training program, file periodic compliance reports with the FCC detailing the steps the provider has taken to comply with the 911 rules, and report any noncompliance with 911 rules within 15 days of discovering such noncompliance.
Looking Forward
C9SPs have about one month to confirm compliance with the reliability rules and submit a required certification. Based on the FCC’s enforcement efforts last year, C9SPs would be well-advised to work diligently to meet this upcoming deadline.
NAVEX’s 2022 Risk & Compliance Hotline & Incident Management Benchmark Report reveals an increase in internal reporting about misconduct and an increase in allegations of retaliation. The analysis of data from 3,470 organizations that received more than 1.37 million individual reports identified the following trends (see the full report for a discussion of additional trends and analysis of the data):
“More actual allegations of misconduct, rather than inquiries about policies or possible misconduct. Ninety percent of all reports in 2021 were allegations of misconduct, up from 86 percent last year and hitting an all-time high since our first benchmark report more than ten years ago.”
“Reports about retaliation, harassment and discrimination jumped – especially retaliation. In 2021, reports of retaliation nearly doubled . . . Taken altogether, these findings suggest employees are more attuned to workplace civility issues. That would fit with external trends such as more talk about systemic racism, income inequality and political divisions; as well as increasing protection for whistleblowers and employees’ awareness of those protections.”
“Substantiation rates continue to edge upward. Overall substantiation rates rose from 42 percent in 2020 to 43 percent in 2021, and up from 36 percent a decade ago. The reports substantiated most often were data privacy concerns (63 percent), environmental issues (59 percent), and confidential and proprietary information (54 percent). The reports substantiated least often were about retaliation (24 percent).”
“The substantiation rate for reports of retaliation also went up slightly, from 23 percent in 2020 to 24 percent in 2021 – the highest substantiation rate seen since 2016. While steady, this substantiation rate is significantly below the overall median case substantiation rate of 43 percent in 2021. These cases, though difficult to prove, warrant attention.”
“Reports of harassment exceeded levels from the height of the #MeToo movement.”
Corporate Whistleblower Protections
Whistleblower retaliation remains all too prevalent. A September 14, 2022 Bloomberg article titled Whistleblower retaliation remains all too prevalent discusses how “choosing to be a whistle-blower can also be a lonely, risky road” and identifies many deterrents to speaking up – “[t]hey may be afraid of litigation, ruining their reputations, losing security clearances or facing jail time.”
Fortunately, federal and state laws afford corporate whistleblowers remedies to combat retaliation, and whistleblower reward laws incentivize whistleblowers to take the considerable risks entailed in reporting fraud and other wrongdoing to the government. For example, the
SEC Whistleblower Program offers awards to eligible whistleblowers who provide original information that leads to successful SEC enforcement actions with total monetary sanctions exceeding $1 million. A whistleblower may receive an award of between 10% and 30% of the total monetary sanctions collected in actions brought by the SEC and in related actions brought by other regulatory or law enforcement authorities. The SEC Whistleblower Program allows whistleblowers to submit tips anonymously if represented by an attorney in connection with their tip.
What is Whistleblower Retaliation?
Whistleblower retaliation laws prohibit a broad range of retaliatory actions against whistleblowers, including any act that would dissuade a worker from engaging in protected whistleblowing. Examples of actionable whistleblower retaliation include:
Harassing a whistleblower or subjecting the whistleblower to a hostile work environment;
Reassigning a whistleblower to a position with significantly different responsibilities;
Issuing a performance evaluation or performance improvement plan that supplies the necessary foundation for the eventual termination of the whistleblower’s employment, or a written warning or counseling session that is considered discipline by policy or practice and is routinely used as the first step in a progressive discipline policy;
Discriminating against a whistleblower in the terms and conditions of employment because of whistleblowing.
The DOL Administrative Review Board has emphasized that statutory language prohibiting discrimination “in any way” must be broadly construed and therefore a whistleblower need not prove that a retaliatory act had a tangible impact on an employee’s terms and conditions of employment.
What Damages Can a Whistleblower Recover in a Whistleblower Retaliation Case?
Whistleblower retaliation can exact a serious toll, including lost pay and benefits, reputational harm, and emotional distress. Indeed, whistleblower retaliation can derail a career and deprive the whistleblower of millions of dollars in lost future earnings.
Whistleblowers should be rewarded for doing the right thing, but all too often they suffer retaliation and find themselves marginalized and ostracized. Federal and state whistleblower laws provide several remedies to compensate whistleblowers that have suffered retaliation, including:
back pay (lost wages and benefits);
emotional distress damages;
damages for reputational harm;
reinstatement or front pay in lieu thereof;
lost future earnings; and
punitive damages.
Combating Whistleblower Retaliation: How to Maximize Your Recovery
Whistleblower protection laws can provide a potent remedy, but before bringing a retaliation claim, it is crucial to assess the options under federal and state law and develop a strategy to achieve the optimal recovery. Key issues to consider include the scope of protected whistleblowing, the burden of proof, the damages that a prevailing whistleblower can recover, the forum where the claim would be litigated, and the impact of the retaliation claim on a whistleblower rewards claim.
Scope of Protected Whistleblowing
There is no federal statute that provides general protection to corporate whistleblowers. Instead, federal whistleblower protection laws protect specific types of disclosures, such as disclosures of securities fraud, tax fraud, procurement fraud, or consumer financial protection fraud. The main sources of federal protection for corporate whistleblowers include the whistleblower protection provisions of the following:
The False Claims Act (FCA) — protecting disclosures about fraud directed toward the government, including actions taken in furtherance of a qui tam action and efforts to stop a violation of the FCA;
The Defense Contractor Whistleblower Protection Act (DCWPA) — protecting whistleblowing about gross mismanagement of a federal contract or grant; a gross waste of federal funds; an abuse of authority relating to a federal contract or grant or a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract;
The Sarbanes-Oxley Act (SOX) — protecting disclosures about mail fraud, wire fraud, bank fraud, securities fraud, a violation of any SEC rule, or shareholder fraud;
The Dodd-Frank Act (DFA) — protecting whistleblowing to the SEC about potential violations of federal securities laws;
The Taxpayer First Act (TFA) — protecting disclosures about tax fraud or tax underpayment;
The Consumer Financial Protection Act (CFPA) — protecting disclosures concerning violations of Consumer Financial Protection Bureau rules or federal laws regulating unfair, deceptive, or abusive practices in the provision of consumer financial products or services; and
While most of these anti-retaliation laws protect internal disclosures (e.g., reporting to a supervisor), whistleblower protection under the DFA is predicated on a showing that the whistleblower disclosed a potential violation of federal securities law to the SEC prior to suffering an adverse action.
State law may also provide a remedy, including the anti-retaliation provisions in state FCAs. And approximately 42 states recognize a common law wrongful discharge tort action (a public policy exception to at-will employment), which generally protects refusal to engage in illegal activity and the exercise of a statutory right.
Burden of Proof
To maximize the likelihood of winning a case (or at least getting the case before a jury), it is useful to select a remedy with a favorable causation standard (the level of proof required to link the protected whistleblowing to the adverse employment action). SOX has a favorable “contributing factor” causation standard, i.e., the whistleblower prevails by proving that their protected whistleblowing affected in any way the employer’s decision to take an adverse action. In contrast, the FCA and DFA require the whistleblower to prove “but for” causation, i.e., the adverse action would not have happened “but for” the protected whistleblowing (albeit there is no need to prove that it was the sole factor).
Damages and Remedies in Whistleblower Retaliation Cases
Variations in the remedies available to whistleblowers under federal anti-retaliation laws may warrant bringing more than one claim. For example, the DCWPA authorizes an award of back pay (the value of lost pay and benefits), and the FCA authorizes an award of double back pay. If the whistleblower’s disclosures are protected under both statutes, then the whistleblower should bring both claims.
While a prevailing whistleblower can recover back pay under both the DFA and SOX (double back pay under the former and single back pay under the latter), the DFA does not authorize special damages, i.e., damages for emotional distress and reputational harm. In contrast, SOX authorizes uncapped compensatory damages. Therefore, a whistleblower protected under both statutes should bring the SOX claim within the much shorter SOX statute of limitations (180 days) to recover both double back pay and special damages.
State law may also provide a remedy, and if the whistleblower can pursue both a statutory remedy and a wrongful discharge tort, the latter may offer the opportunity to seek punitive damages.
Forum Selection and Administrative Exhaustion
When selecting the optimal remedy to combat retaliation, a whistleblower should consider the forum where the claim would be tried and determine whether the claim must initially be investigated by a federal agency before the whistleblower can litigate the claim. SOX provides an unequivocal exemption from mandatory arbitration, but Dodd-Frank claims are subject to arbitration. Accordingly, a whistleblower protected both by SOX and Dodd-Frank should file a SOX claim within the 180-day statute of limitations to preserve the option to try the case before a jury.
Several of the corporate whistleblower protection laws require that the whistleblower file the claim initially at a federal agency and permit the agency to investigate the claim before the whistleblower can litigate the claim. This is called administrative exhaustion, and failure to comply with that requirement can waive the claim. In contrast, the FCA and DFA do not require administrative exhaustion.
Impact of Whistleblower Retaliation Claim on Whistleblower Rewards Claim
Another important consideration is the potential impact of a retaliation case on a qui tam or whistleblower rewards case. Filing an FCA retaliation claim while a qui tam suit is under seal poses some risk of violating the seal, which could bar the whistleblower from recovering a relator share. Therefore, counsel should consider filing the FCA retaliation claim under seal along with the qui tam suit.
Further, whistleblowers pursuing rewards claims at federal agencies (e.g., SEC or IRS whistleblower claims) while simultaneously pursuing related retaliation claims (e.g., a SOX or TFA claim) should assess the potential impact of the retaliation claim and the potential discoverability of submissions to the SEC or IRS on the rewards claim(s).
Although the patchwork of whistleblower protection laws fails to protect disclosures about certain forms of fraud, there are important pockets of protection. To effectively combat retaliation, whistleblowers should avail themselves of all appropriate remedies.
These figures highlight the ongoing safety crisis for cyclists on American roadways.
Bicycle-related deaths and injuries: the statistics
According to the CDC, bicyclists account for 2% of all motor vehicle crashes. Approximately 1,000 people die each year from these accidents, and 130,000 become injured. These numbers will continue to increase unless widespread measures to prioritize road safety become implemented nationwide.
We see this trend reflected in the report from the NSC, which notes an increase in preventable nonfatal injuries of 5% between 2019 and 2020. Additionally, the newest data released by the National Highway Traffic Safety Administration (NHTSA) shows that bicyclist fatalities increased again in 2021 by 5%.
In the state of New Jersey specifically, there were 30 preventable bicycle-related fatalities between 2019 and 2020. As of 2021, the number of deaths reached its highest single-year total thus far, with 27 individuals lost. Hopefully, these numbers will decrease in the coming years as legislative efforts are implemented to improve cyclist safety.
Legislation addressing the bicycle fatalities crisis
With the continual increase in motor vehicle fatalities and the increase in injuries sustained by these accidents, both state and federal legislatures have implemented new measures to address street safety.
The following legislation seeks to reduce the number of crashes and fatalities involving bicyclists, pedestrians, and others using a method of personal conveyance.
New Jersey’s Safe Passing Law
New Jersey has implemented its Safe Passing Law, laying out new driver requirements. When approaching someone using a method of personal conveyance such as a bicycle, electric scooter, or a pedestrian, drivers must do the following:
Move over one lane to allow for extra space while passing.
If moving over one lane is not possible, drivers must allow for four feet of space while approaching and passing.
If neither moving nor allowing four feet of space is possible without violating traffic laws, drivers must reduce the vehicle’s speed to 25 mph and be prepared to stop.
Drivers who violate New Jersey’s Safe Passing Law will incur a $100 fine if the violation does not result in personal injury. However, they will incur two motor vehicle penalty points, and the fine will be $500 if the offense results in bodily injury to pedestrians, cyclists, or others using a method of personal conveyance.
The Bipartisan Infrastructure Law
The Bipartisan Infrastructure Law signed by President Biden on November 15th, 2021, authorizes up to $550B of funding between 2022 and 2026 to invest in America’s infrastructure, including support for safety improvements on our roads.
Safe Streets and Roads for All Program
The Safe Streets and Roads for All Program (SS4A) is a new grant program included in the Bipartisan Infrastructure Law that allocates $6B in funding over the next five years. The program seeks to fund local efforts to reduce roadway crashes and fatalities.
Eligible applicants for the SS4A grant include:
Metropolitan planning organizations
Political subdivisions of a State
Members of a federally recognized Tribal government
Multi-jurisdictional groups of the entities above
Also, according to the Federal High Administration, the use of SS4A funds must only be used for:
Development of a comprehensive safety action plan
Planning, designing, and developing activities for initiatives identified in the safety action plans
Implementing the projects and strategies identified in the safety action plan.
The Department of Homeland Security (DHS)announced it is considering changes to the Form I-9 documentation examination procedures. As human resources teams know, the remote workplace that became common during the COVID-19 pandemic made an already complicated I-9 process a logistical nightmare. With the U.S. government’s declaration of a national emergency due to the COVID-19 pandemic, DHS and Immigration and Customs Enforcement (ICE) announced certain flexibilities in March 2020 that suspended the requirement of in-person review of I-9 documents when a company was operating remotely due to COVID-19. Those flexibilities have been extended numerous times and are currently set to expire Oct. 31, 2022.
While DHS says it is considering making these temporary flexibilities permanent, the Notice of Proposed Rule Making (NPRM) published last month does not seek to do so. Instead, the NPRM seeks to validate the authority of the DHS secretary to enact flexibilities, offer alternative options, and/or implement a pilot program to evaluate existing and additional alternative I-9 procedures for some or all employers. DHS recognizes that more and more employers are utilizing telework and remote work for their employees and that requiring in-person review of I-9 documents is no longer consistent with work patterns of many businesses.
Some of the more notable possible changes to the I-9 process described in the NPRM include requiring employers to note on the Form I-9 which of the alternative procedures they used; requiring employers to retain copies of I-9 documents; requiring online training on fraudulent document and/or anti-discrimination training for employers who wish to utilize the alternative procedures; and limiting eligibility to use the alternative procedures to employers that utilize E-Verify, the government’s online employment verification system.
Comments to the NPRM are due on or before Oct. 17, 2022.
On Thursday, House Speaker Nancy Pelosi expressed concerns with certain features of the American Data Privacy and Protection Act (“ADPPA”) and its broad preemption provision, which as currently drafted would override the California Consumer Privacy Act (“CCPA”) and its subsequent voter- approved amendments. The ADPPA was favorably reported by the House Committee on Energy and Commerce in July by a vote of 53-2. The bill has not yet been scheduled for a vote on the House floor. Speaker Pelosi “commended” the Energy and Commerce Committee for its efforts, while also praising California Democrats for having “won the right for consumers for the first time to be able to seek damages in court for violations of their privacy rights.” Speaker Pelosi noted that California leads the nation in protecting consumer privacy and it was “imperative that California continues offering and enforcing the nation’s strongest privacy rights.”
Speaker Pelosi stated that she and others would be working with Chairman Frank Pallone (D-NJ) to address concerns related to preserving California privacy laws. Although Speaker Pelosi’s comments cast doubt on the future of the ADPPA, we continue to believe that it will clear the House. We anticipate only modest tweaks to the preemption provision, which must be acceptable to the Republican leadership of the committee for the bill to move forward. As Speaker Pelosi noted, the bill contains a private right of action for consumers—the single most important provision to Republicans in return for strong preemption language. After more than a decade of effort, the Democratic leadership of the House will be hard pressed to let the perfect be the enemy of the really good.
FMCSA stated that the goal of the updated MEH and related Medical Advisory Criteria is to provide information about regulatory requirements and guidance for Medical Examiners to consider when making physical qualification determinations in conjunction with established best medical practices. The revised Medical Advisory Criteria, in addition to being included in the MEH, would also be published in Appendix A to 49 CFR part 391. The final version of the criteria would be identical in both publications. FMCSA is proposing to update both the MEH and Medical Advisory Criteria and seeks public comment on these documents until September 30, 2022. The draft MEH may be viewed here.
Use of CBD with 0.3% THC or Less Is Not Automatically Disqualifying
Under FMCSA regulation 49 CFR 391.41(b)(12)(i), CMV drivers are not permitted to be physically qualified when using Schedule I drugs under any circumstances. The federal Controlled Substances Act lists marijuana, including marijuana extracts containing greater than 0.3% delta-9-tetrahydrocannabinol (THC), as Schedule I drugs and substances. A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the State where the driver resides for recreational or medical use.
However, under current federal law cannabidiol (CBD) products containing less than 0.3% THC are not considered Schedule I substances; therefore, their use by a CMV driver is not grounds to automatically preclude physical qualification of the driver under §391.41(b)(12)(i).
FMCSA emphasized that the U.S. Food and Drug Administration (FDA) does not currently determine or certify the levels of THC in products that contain CBD, so there is no federal oversight to ensure that the labels on CBD products that claim to contain less than 0.3% of THC are accurate. Therefore, drivers who use these products are doing so at their own risk.
FMCSA now proposes that each driver should be evaluated on a case-by-case basis and encourages Medical Examiners to take a comprehensive approach to medical certification and to consider any additional relevant health information or evaluations that may objectively support the medical certification decision. Medical Examiners may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process, if it is deemed to be helpful in determining whether a driver is using a prohibited substance, such as a CBD product that contains more than 0.3% THC.
This guidance does not impact FMCSA’s drug and alcohol testing regulations. Use of a CBD product does not excuse a positive marijuana drug test result.
Use of Suboxone and Similar Drugs Is Not Automatically Disqualifying
FMCSA received a large number of inquiries related to Suboxone (a Schedule III drug under federal law, meaning that it has a lower potential for abuse than Schedule I and II drugs). Treatment with Suboxone and other drugs that contain buprenorphine and naloxone, as well as methadone, are not identified in the FMCSA regulations as precluding medical certification for operating a CMV. FMCSA relies on the Medical Examiner to evaluate and determine whether a driver treated with Suboxone singularly or in combination with other medications should be issued a medical certificate. The Medical Examiner should obtain the opinion of the prescribing licensed medical practitioner who is familiar with the driver’s health history as to whether treatment with Suboxone will or will not adversely affect the driver’s ability to safely operate a CMV. The final medical certification determination, however, rests with the Medical Examiner who is familiar with the duties, responsibilities, and physical and mental demands of CMV driving and non-driving tasks.
