President Biden Issues Executive Orders Impacting Employers
The following article was first published on the Employment Law Letter section of law firm Shipman & Goodwin’s website.
Within his first few days in office, President Biden issued a wave of executive orders aimed at protecting workers amid the pandemic.
According to the White House, the core policy objective underlying each order is implementing evidence-based measures to support the workforce and protect those hit hardest by the pandemic, including communities of color and working-class Americans, while promoting an inclusive and diverse workplace.
These orders may have significant implications for your workplace. Here is what you need to know.
1. Protecting Worker Health and Safety
Employers covered by OSHA (i.e. most private employers and federal government employers) may be required to implement additional safety precautions related to COVID-19.
By February 4, 2021, the U.S. Department of Labor must:
a. issue revised guidelines on workplace safety during the COVID-19 pandemic;
b. consider whether mandatory emergency measures are necessary, such as mask-wearing in the workplace and if so, issue them by March 15, 2021;
c. review the COVID-19 enforcement efforts of OSHA and identify any short-, medium-, and long-term changes to better protect workers and ensure equity in enforcement;
d. launch a national program through OSHA to focus on enforcement of the most serious violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles; and
e. create a multilingual outreach campaign to inform workers and their representatives (including labor unions) of their rights, with a focus on communities hit hardest by the pandemic.
For public sector workers, the order instructs various department heads to coordinate with states and labor unions to ensure that their occupational safety and health plans approved under section 18 of OSHA are adequately protecting workers and to work with states that do not have such plans to bolster worker protections against COVID-19.
Finally, the order directs the Department of Labor to work with department heads to ensure that other categories of workers, including mine workers and others not covered by OSHA, explore measures to protect workers, including implementation of temporary emergency measures.
The order makes clear, however, that it is not creating a right or benefit that could be enforced against the U.S. government, or its departments or agencies.
Employers in Connecticut have already had to comply with the sector rules put in place to operate during this pandemic through Gov. Lamont’s own executive orders.
Some other states have enacted similar rules, including New York. Thus, employers will need to ensure that they are complying with both federal and state rules.
2. Economic Relief Related to the COVID-19 Pandemic
President Biden asked the U.S. DOL to consider clarifying that workers may refuse employment that will jeopardize their health or the health of someone else in their household, and if they do so, they will still qualify for unemployment insurance.
It is not yet clear how this clarification will impact employers in Connecticut; for example, the Connecticut Department of Labor has issued guidance suggesting that employees who are at high-risk for severe illness may turn down work in certain situations and still be eligible for unemployment insurance.
3. Protecting the Federal Workforce and Requiring Mask-Wearing
Federal Employers: On-duty or on-site federal employees, on-site federal contractors, and all persons in federal buildings or on federal lands must comply with CDC guidelines with respect to wearing masks, maintaining physical distance, and other public health measures.
Heads of agencies may make categorical or case-by-case exceptions as required by law (to accommodate a disability, for example), but must require alternative safeguards, such as additional physical distancing.
All exceptions must be documented in writing.
Heads of agencies should provide masks to federal employees where possible.
The Department of Health and Human Services shall also develop a COVID-19 testing plan for the federal workforce.
All Other Employers: HHS shall engage state and local leaders to encourage mask-wearing across the country and create incentives for mask-wearing.
Safer Federal Workforce Task Force: The order creates a new task force to provide guidance on testing, contact tracing, physical distancing and occupancy standards, air filtration, equipment, disinfecting and cleaning, telework, vaccine distribution and administration, and other infrastructure needed to combat COVID-19.
Note that the order does not create a right or benefit that could be enforced against the United States government, or its departments or agencies.
4. Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
President Biden issued this order targeting “entrenched disparities in our laws and public policies” through a “comprehensive approach to advancing equity for all.”
The order aims to improve opportunities for historically underserved communities.
Notably, the order defines equity as “the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities, such as Black, Latino, Indigenous and Native American persons, Asian Americans and Pacific Islanders, and other persons of color; people identifying as lesbian, gay, bisexual, transgender and queer; people with disabilities; religious minorities; persons who live in rural areas; and persons otherwise affected by persistent poverty or inequality.”
Recognizing that such equity “requires a systematic approach to embedding fairness in decision-making processes,” the order requires all federal agencies to review internal equity and to deliver an action plan within 200 days, addressing unequal barriers to opportunity found within each agency’s policies and programs.
The White House Domestic Policy Council is tasked with coordinating efforts to implement equity policies across the Federal Government, and the director of OMB is charged with studying and determining the best methods for assessing equity and delivering a report within six months identifying best practices.
This order also revokes former former President Trump’s order limiting the implementation of diversity and inclusion training for federal government employees and contractors.
5. Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation
President Biden expanded federal nondiscrimination protections based on sexual orientation and gender identity.
The order implements the U.S. Supreme Court’s ruling in the consolidated cases Bostock v. Clayton County, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC, and ensures that the federal government interprets Title VII of the Civil Rights Act of 1964 as prohibiting workplace discrimination on the basis of sexual orientation and gender identity.
The order also builds on the Supreme Court’s decision, directing federal agencies to interpret all federal anti-discrimination statutes prohibiting sex discrimination, such as Title IX, to protect against discrimination based on sexual orientation, gender identity, and gender expression.
The new administration furthered this policy of protecting individuals’ gender identity on Monday, signing an additional executive order repealing former President Trump’s ban on transgender individuals serving openly in the military.
6. Protecting the Federal Workforce
President Biden restored federal employees’ collective bargaining power and protections through an order rescinding a series of his predecessor’s executive orders that had limited the collective bargaining power of federal unions and made it easier to terminate the employment of federal employees.
Specifically, the order dismantles the prior creation of “Schedule F” employees, which intended to remove civil protections by re-classifying federal employees working in policy-focused roles into job classifications that would make them easier to fire and replace at will.
The order also directs agencies to “bargain over permissible, non-mandatory subjects of bargaining when contracts are up for negotiation,” and requires the Office of Personnel Management to provide a report to the president with recommendations “to promote a $15/hour minimum wage for federal employees.”
We anticipate that President Biden may issue additional executive orders in the coming days and weeks that will affect employees’ rights in the workplace; stay tuned.
About the Authors
Keegan Drenosky is an associate in the Stamford office of Shipman & Goodwin. She practices in the area of labor and employment law and business litigation.
Sarah Westby is an associate in the Hartford office of Shipman & Goodwin and is a member of the firm’s employer defense and labor relations practice group.
Daniel Schwartz is a partner in the Hartford office of Shipman & Goodwin and has decades of experience solving complex employment law problems for companies.
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