Commencement Is Only The Beginning
May 12, 2021


We’re in the midst of commencement season, and the Class of 2021 is ready to make its mark.  In Washington, without much pomp or circumstance, Congress took action on a number of initiatives designed to affect change across the nation and among a number of disciplines.  We take a closer look at some of the parchment papers crossing their stages this week. 



The House Ways and Means Committee passed H.R. 2954, the Securing a Strong Retirement Act of 2021, dubbed the “Secure Act 2.0.”  Among a number of other provisions, the bill raises the required minimum distribution age from 72 to 75, expands automatic enrollment in retirement plans, and enhances 403(b) plans. The bill now moves to the full House. Supporters of the legislation cite that the COVID-19 pandemic exacerbated our nation’s “existing retirement crisis.” Proponents argue that the Secure Act 2.0 will enable more workers to begin saving earlier and give them peace of mind as they plan for the future.



With support from both sides of the aisle, lawmakers in the U.S. House of Representatives introduced health care legislation called, “the Coronavirus Provider Protection Act.”  The measure (H.R. 3021) addresses potential tort liability facing health care providers in the wake of COVID-19.  Supporters cite a “patchwork” of state laws and expiring executive orders that were adopted during the pandemic, which are “insufficient in addressing a national problem in need of a federal solution.”  The professional negligence protections contained in H.R. 3021 would be applied narrowly.  They would only be triggered when the alleged act or omission occurred during the declared COVID-19 public health emergency, and during the good faith provision or arranging of care, and within the providers usual scope of practice.  We’ll be tracking the bill.



Turing the public sector, lawmakers in the House introduced the Use of Force Accountability Act, a bill that would impose state-level, independent investigations in police incidents that involved deadly force and resulted in death or injury.  The proposed federal law would compel states to enact laws requiring an independent investigation of all officer-related deaths, mandate that all investigations be referred to the internal affairs department of the law enforcement agency for review, and create a grant program to assist state attorney generals in implementing independent investigation statutes. 



Finally, in product safety news, three Democratic Representatives introduced legislation, called “the Sunshine in Product Safety Act,” to fully repeal Section 6(b) of the Consumer Product Safety Act. Generally, Section 6(b) requires the Consumer Product Safety Commission (CPSC) to engage in a series of procedural steps before publicly disclosing information from which the identity of a manufacturer of a product can be readily ascertained.  These may include notice to the manufacturer of the potential disclosure, providing either a summary of what the agency intends to disclose, and providing the company with the opportunity to comment, typically within 15 days. Many consumer advocates, as well as Democratic commissioners of the agency, have asserted that Section 6(b) prevents disclosure of meaningful information on the CPSC of products and is responsible for consumer deaths.


Agency Action


The Environmental Protection Agency (EPA) proposed a “phase down” production and use of hydrofluorocarbons (HFCs), which are greenhouse gases commonly used in refrigerators and air conditioners.  The new rule is intended to decrease U.S. production and use of the gases by 85% over the next 15 years. EPA Administrator Michael Regan said, “by phasing down HFCs, which can be hundreds to thousands of times more powerful than carbon dioxide at warming the planet, EPA is taking a major action to help keep global temperature rise in check.”



In other agency news, the U.S. Food and Drug Administration (FDA) released a study of foodborne illness risk factors in retail food store deli departments. Foodborne illness remains a major public health concern in the U.S., causing approximately 48 million illnesses and 3,000 deaths each year, costing roughly $77.7 billion dollars annually.  As part of a 10-year initiative, the FDA report observed that delis with well-developed Food Safety Management Systems (FSMS) were more likely to properly control foodborne illness risk factors than delis with less developed FSMS. Also, delis with a Certified Food Protection Manager (CFPM), who is the person in charge, have significantly better developed FSMS than delis that do not have a CFPM. The report found that deli departments that mitigated bare-hand contact with ready-to-eat foods and demonstrated better engineering controls over the deli temperatures fared better. Opportunities for improvement included better handwashing practices, proper refrigeration, and enhanced methods of cooling food.


Making Our Way Around the Country


In follow-up to last week’s edition of The Way, the U.S. Department of Labor (DOL) repealed the Trump-era rule regarding classification of independent contractors under the Fair Labor Standards Act (FLSA). Labor advocates criticized the rule as favoring classification of workers as independent contractors as opposed to employees.  Under the FLSA, only employees are entitled to minimum wage, overtime pay, and other protections.  The Biden administration “believes that the rule is inconsistent with the FLSA’s text and purpose and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.” We’ll continue to track the DOL for proposed rules to delineate independent contractors.



The Colorado Senate narrowly (19-16) passed a bill (S.B. 197) that would give injured workers control over their choice of primary treating physician. If enacted, the measure would allow injured workers to choose from any doctor accredited as Level I or Level II under the Colorado Medical Practice Act. Currently, employers select four physicians and/or corporate medical providers for the injured worker to choose from for treatment. The legislation would also require employers to notify any worker who sustained an on-the-job injury within seven business days of notification of the injury of the workers’ right to designate a treating physician and how to access the list of Level I and II physicians. If the employee declines to choose a physician from the Level I or Level II list within seven days, the employer retains the right to designate a treating physician.



Effective July 1, 2021, all TPAs administering workers' compensation business for self-insured employers must be licensed by the Washington State Department of Labor and Industries (DLI).  Eligible claims administration firms must be licensed to conduct business in the state, meet DLI’s requirements for claims handling, comply with the reporting requirements, and provide a list of the self-insured employers in Washington for which the TPA is under contract to handle claims. Under the previous rule, only one claims administrator at each location was required to be certified by the Washington DLI.  Under the new rule, all claims administrators will need to be certified or in the process of becoming certified.



Back to our main story this week, graduates are taking aim at their next voyage, leaving the comfort of their known ports behind.  For many, this means taking on a new vocation through an internship experience.  We’re looking forward to meeting our new class of interns this summer, who always bring a welcome dose of energy and enthusiasm to the workday.  Congratulations to the Class of 2021!  Go out and change the world!  And, be sure to stay well, stay safe, and stay connected along the way. 


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