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LawFlash

Key Takeaways from Biden Administration’s First Executive Orders

January 21, 2021

Immediately following his inauguration on January 20, US President Joseph R. Biden, Jr. began taking executive action to enact many of his administration’s initial priorities, which included a number of executive orders, memoranda, and directives to cabinet agencies to address policies he detailed during his campaign, including the COVID-19 pandemic, climate change, equality, and the global economy. To help clients navigate potential changes from these actions, Morgan Lewis has provided a quick analysis of many of these orders and their impact. We will release more detailed pieces as the president unveils additional specifics of his First 100 Days plan.

Regulatory Freeze Pending Review
White House Chief of Staff Ron Klain, at the direction of President Biden, issued a memorandum on January 20 ordering heads of executive agencies and departments “propose or issue no rule in any manner — including by sending a rule to the Office of the Federal Register (OFR) — until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule.” As a result, rules not yet published in the Federal Register should be withdrawn. For rules that were published in the Federal Register, or issued in any manner, agency or department heads should consider postponing the effective date by 60 days. This 60-day delay would allow agencies and departments to open a 30-day comment period before the rules take effect.

Paris Climate Agreement
Rejoining the Paris Agreement fulfills a promise from President Biden’s presidential campaign. As a procedural matter, President Biden must first send notice to the United Nations that the United States intends to rejoin the agreement, which was sent to UN Secretary-General Antonio Guterres on January 20, and 30 days afterwards, the United States will be permitted to rejoin. Once the United States rejoins the Paris Agreement, it will face the difficult task of determining and submitting “nationally determined contributions” (NDCs) to the other member nations, which will be the United States’ stated goals for greenhouse gas (GHG) emission reductions over time. During the Obama administration, the US pledged that, by 2025, the US would reduce emissions levels by 26% to 28% compared to 2005 levels. During the presidential campaign, President Biden pledged to have the US achieve net-zero emissions by 2050 but the US is currently not on track to achieve either goal. The various additional executive orders related to renewable energy and climate change that President Biden is expected to issue in the first weeks of his presidency as well as early legislation will be closely evaluated by both the domestic and international communities to assess the scope and timing of the administration’s plans for GHG reduction. Additional information on Day 1 climate and energy issues can be found in this related Lawflash.

Proclamation on Ending Discriminatory Bans on Entry to the United States
President Biden has revoked the Trump administration’s travel and immigration restrictions on a group of 13 countries, most of which are predominantly Muslim or African. The ban impacted nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, Nigeria, Myanmar, Eritrea, Kyrgyzstan, Sudan, and Tanzania. The order instructed the State Department to prepare a proposal for reconsideration of visa applications that had been previously denied under the bans, and a plan to ensure that visa applicants who wish to reapply are not prejudiced by a prior visa denial under the bans.

Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)
By executive action, President Biden has ordered the Departments of Justice and Homeland Security to take all appropriate actions to “preserve and fortify” the Obama-era Deferred Action for Childhood Arrivals (DACA) program that offers works permits and deportation relief to more than 640,000 undocumented immigrants brought to the United States as children. Many companies have employees who hold DACA status, but this benefit has been under threat of rescission in recent years. This executive order is meant to protect DACA recipients; immigration legislation proposed by the Biden administration would offer permanent residence (green cards) to DACA beneficiaries under certain conditions.

Protecting the Federal Workforce and Requiring Mask-Wearing
President Biden signed an executive order aimed at protecting the federal workforce from the risk of COVID-19 transmission. The order requires mask wearing, physical distancing, and other measures by on-duty or on-site federal employees, on-site federal contractors, and all persons in federal buildings or on federal lands. The order also encourages “masking across America” by requiring the Department of Health and Human Services (HHS) and Centers for Disease Control and Prevention (CDC) to engage with state, local, tribal officials, businesses, and other groups, to maximize compliance with mask wearing and other guidance, and sets forth several subjects that should be included, likely signaling what businesses might expect to see in an employer-mandate under the Occupational Safety and Health (OSH) Act. The order requires federal agencies to coordinate with each other and creates a new “Safer Federal Workforce Task Force.” While the president cannot mandate state and local actions, coordinated and clear federal leadership should result in more uniform state and local mandates. 

These include testing methodologies and protocols, contact tracing, physical distancing, occupancy and density standards, equipment such as personal protective equipment, air filtration, enhanced environmental disinfection and cleaning, telework options, and vaccine administration. The mandate is subject to exceptions as necessary or required by law, but exceptions will require appropriate alternative safeguards, such as additional physical distancing measures, additional testing, or reconfiguration of workspace.

Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
This order also revokes EO 13950, which prohibited “divisive concepts” in diversity and inclusion training by the federal government, federal contractors, and federal grantees. Although a federal district court invalidated EO 13950 in December, there remained uncertainty as to whether the Trump administration would appeal that decision and whether Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) would enforce the same prohibitions and principles through existing EO 11246. The revocation of EO 13950 ends these restrictions on diversity training, as well as removing contractor requirements to flow down the diversity training restrictions to their subcontractors. Relatedly, OFCCP has initiated some investigations of federal contractors based on statements regarding their diversity and inclusion efforts, which we discussed in a previous Lawflash. The new director of OFCCP, Jenny Yang, may soon clarify the agency’s position on those investigations but meanwhile, the diversity training restrictions are no longer in effect.

Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
The 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 federal agencies, within 100 days, to identify all laws prohibiting sex discrimination that it enforces and then to develop a plan to ensure all 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 HHS 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.

Organizing and Mobilizing the United States Government to Provide a Unified and Effective Response to Combat COVID-19
The new order on responding to COVID-19 sends a clear message that there will be a much stronger federal response to COVID-19 than we saw under the previous administration, and we anticipate that this will be the first of many pronouncements coming out of the White House and other federal agencies in the days and weeks to come. In addition to a new federal OSHA standard, employers should expect to see a more coordinated federal response around vaccines, and likely additional guidance from the Equal Employment Opportunity Commission (EEOC) about the impact of the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) on employer-provided incentives for vaccination.

Extending the Foreclosure and Eviction Moratoriums
In an effort to extend existing relief to Americans still suffering under the economic hardships caused by the COVID-19 pandemic, the Biden administration announced two measures to extend eviction and foreclosure moratoriums. President Biden asked the Departments of Veterans Affairs, Agriculture, and Housing and Urban Development to consider extending foreclosure moratoriums for federally guaranteed mortgages and continuing applications for forbearance for federally guaranteed mortgages until at least March 31. In response, the US Department of Agriculture announced an extension of eviction and foreclosure moratoriums on USDA Single Family Housing Direct and Guaranteed loans (SFHDLP and SFHGLP) through March 31. In another first-day executive action, the CDC extended the federal eviction moratorium, which had been scheduled to expire on January 31, until at least March 31. These orders are in addition to action taken on January 19 by the Federal Housing Finance Agency (FHFA), which extended until February 28 its moratorium on foreclosures relating to single-family loans backed by Fannie Mae and Freddie Mac (the GSEs), and the moratorium on evictions from properties that have been acquired by a GSE through foreclosure or deed-in-lieu of foreclosure transactions.

Government affairs specialist David Mendelsohn contributed to this article.

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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:

Chicago
Sage Fattahian

Philadelphia
Kenneth Kulak

Washington, DC
Susan Harthill
Sharon Masling
Duke McCall
Eleanor Pelta
Mark Riccardi