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Employers’ Guide to President Biden’s First Week of Executive Actions

January 28, 2021

President Joe Biden has signed several executive orders and announced other directives that will impact employers in the first 100 days of his administration, including guidance on protecting worker health and safety, economic relief for families and businesses, and racial equity and support.

The most immediate action, on the day of his inauguration, was revoking a Trump-era executive order prohibiting certain methods of diversity training by federal contractors. This was swiftly followed by an order directing the US Department of Labor (DOL) to issue COVID-19 workplace safety guidance, which must be issued by February 4. Mandatory standards will likely mirror the guidance, so employers should be prepared for immediate implementation.

Other directives may lead to a $15 minimum wage and paid sick leave entitlement for employees of federal contractors—although this action will likely take several months to implement and take effect, federal contractors may want to develop a plan now to review their pay and leave practices.

Protecting Worker Health and Safety

This order requires the Occupational Safety and Health Administration (OSHA) to issue revised guidance to employers on workplace safety during the COVID-19 pandemic. OSHA must issue this guidance by February 4, and must also consider issuing emergency temporary standards (ETS) on COVID-19. If any ETS are necessary, they must be issued by March 15, 2021.

The order does not provide any details about the measures OSHA must consider, but says that guidance must be science based, including with respect to mask wearing. Some clues may be found in the Executive Order on Protecting the Federal Workforce and Requiring Mask Wearing, such as testing, tracing, physical distancing, occupancy and density standards, personal protective equipment, air filtration, enhanced environmental disinfection and cleaning, telework options, and vaccine administration. The order also instructs OSHA to review its prior COVID-19 enforcement efforts and identify changes that could be made “to better protect workers and ensure equity in enforcement.” Finally, OSHA is required to launch a national enforcement program to focus on violations impacting the largest number of at-risk workers, as well as conduct a multilingual outreach campaign to workers.

OSHA must coordinate with states that have their own OSHA-approved plans to ensure consistency with any revised guidance or ETS. For public sector workers not covered by OSHA, the agency is also tasked with coordinating with state and local governments and public employee unions to bolster protection from COVID-19, and to coordinate with other federal agencies to explore mechanisms to protect workers not protected under the order. The order also requires OSHA’s sister agency, the Mine Safety and Health Administration, to consider the need for any ETS, although the order does not provide a deadline.

Economic Relief for American Families and Businesses

In a January 22 fact sheet, it was announced that President Biden has directed his administration to start the work that would allow him to issue an executive order to require federal contractors to pay a $15 minimum wage and provide emergency paid leave to workers. Agencies tasked with this directive must work quickly to meet the president’s goal of issuing an executive order within the first 100 days of his administration. If implemented, this directive will impact every federal contractor and millions of workers. This mirrors President Biden’s proposal for a $15 minimum wage increase and paid sick leave for most workers as part of his $1.9 trillion stimulus plan, the American Rescue Plan. The $15 minimum wage target is also in line with the Democrats’ Raise the Wage Act of 2021 unveiled on January 26, 2021.

The fact sheet also asked the DOL to consider clarifying that workers who refuse unsafe working conditions can still receive unemployment insurance. If the DOL does issue this clarification, it may have an impact on staffing capacity if more workers choose to leave their jobs in favor of unemployment benefits, claiming unsafe conditions.

Advancing Racial Equity and Support for Underserved Communities

President Biden’s Executive Order 13985 revoked Executive Order 13950, which prohibited “divisive concepts” in diversity and inclusion training by the federal government, federal contractors, and federal grantees. Although a federal district court enjoined the DOL’s Office of Federal Contract Compliance Programs (OFCCP) from enforcing Executive Order 13950 in December, there remained uncertainty as to whether the Trump administration would appeal that decision and whether OFCCP would enforce the same prohibitions and principles through existing Executive Order 11246.

Relatedly, the OFCCP had created a hotline to accept complaints under Executive Order 13950, and had initiated some investigations of federal contractors based on statements regarding their diversity and inclusion efforts. The OFCCP has now announced that in addition to not enforcing EO 13950, it will completely shut down the hotline and administratively close all complaints regarding alleged noncompliance with Executive Order 13950 received through the hotline or any other means.

Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

This executive order ensures that the US Supreme Court’s decision in Bostock, in which the Court ruled that the prohibition on “sex” discrimination in employment includes a prohibition of discrimination on the basis of sexual orientation and gender identity, is applied immediately and efficiently by all federal agencies that enforce any laws that prohibit sex discrimination. The order requires each federal agency, within 100 days, to identify all laws prohibiting sex discrimination that it enforces and then to develop a plan to ensure all of its regulations, guidance, and policies clearly lay out the prohibition against discrimination based on sexual orientation and gender identity.

While this order does not change anything for employers on how they should treat their employees, employers should expect guidance, and then regulations, from the US Department of Health and Human Services reinstating the regulations from the Obama administration that employer-sponsored group health plans and health insurance companies must not discriminate in any health coverage or health insurance policy.

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CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Century City
Harry Johnson

Washington, DC 
Susan Harthill
Sharon Masling
Philip Miscimarra
Jonathan Snare