BOY THAT ESCALATED QUICKLY
President Joe Biden has issued a series of executive orders, actions, and memoranda since taking office just a week ago. This week we’re reporting on some of the major ones affecting employers, businesses, and higher education.
BEFORE WE START, LET’S GO OVER THE GROUND RULES
The Biden administration issued a memorandum on January 20 immediately freezing “midnight regulations” that the Trump administration issued but had not yet taken effect within 60 days of the election and withdrawing all pending rules that had not yet been published in the Federal Register. The freeze will postpone any finalized midnight regulations for 60 days while the Biden administration decides how to proceed. All presidents since Ronald Reagan who entered office following the departure of a president from an opposing party have implemented initial regulatory freezes.
AT AGE 11, I AUDITED MY PARENTS
One of the regulations the Biden administration is taking a look at is the Department of Labor (DOL) rule making it easier for businesses to classify workers as independent contractors. The rule, which was slated to take effect on March 8, would have affected millions of workers, including gig workers, people in service jobs, and other industry sectors. The Department of Homeland Security rule that would have ended the H-1B lottery is another rule that’s now on hold. This rule would have eliminated the lottery system and instead grant petitions based on registrations starting with the highest salary and working down. In other H-1B news, a DOL rule that was released Jan. 15 that would have put additional requirements on companies that receive H-1B visa workers for contracted work is now moot.
NEED MORE COWBELL
A rule affecting “back-of-the-house” restaurant workers that had not taken effect yet is also on hold. The rule would amend the Fair Labor Standards Act (FLSA) requirements for tipped workers and allow nontipped hospitality workers to share in gratuities under the FLSA. Eight states and the District of Columbia filed suit on Jan. 19 challenging the rule, claiming it will lower wages for tipped workers. President Biden announced his goal to increase the minimum wage to $15 per hour for federal employees in an executive order.
STAY CLASSY SAN DIEGO
President Biden is slated to issue additional executive actions this week as well as introduce to Congress a $1.9 trillion coronavirus aid package. This week the House delivered its impeachment article against Donald Trump to the Senate, but the trial will not start until the week of Feb. 8, giving the Senate time to confirm more of Biden’s Cabinet. Whew, let’s pause for a station identification.
And We're Back with Coronavirus Executive Actions
TRAVEL, TESTING, AND TREATMENT
President Biden issued a number of executive orders to tackle the pandemic. Not only will masks now be required on all federal property, but they will also be required for anyone using public transportation, including trains, buses, and aircraft. Another order establishes a new drug discovery and development program that emphasizes diversity in clinical trials and calls for continued research into treatments for COVID-19. In addition to new drugs, another executive order places renewed emphasis on more testing. A new pandemic testing board was established to discover new kinds of effective and rapid tests and scale them up quickly.
Along with additional testing and treatment measures, President Biden issued an executive order calling for the increased protection of the safety and health of workers from COVID-19. The order requires the Occupational Safety and Health Administration (OSHA) to consider whether any emergency temporary standards on COVID-19, such as masks, are necessary. If any emergency temporary standards are deemed necessary, they must be issued by March 15, according to the executive order. OSHA also must, within two weeks of the executive order, revise guidance to employers on workplace safety during the pandemic.
President Biden is pledging to reopen most K-12 schools within 100 days, although the administration acknowledged that the reopening timeline may need to be extended. Biden signed several executive actions to help support this reopening goal. One executive order directs the Departments of Education and Health and Human Services to provide reopening guidance to schools with a focus on masking, testing, and cleaning. A separate presidential memorandum offers reimbursement to schools for purchases of personal protective equipment through the Federal Emergency Management Agency’s disaster relief fund. Biden is pushing Congress to approve another $170 billion for K-12 schools and higher education to help them operate safely in person or facilitate remote learning. We’ll keep reporting on the progress and changes of the $1.9 trillion coronavirus aid package in the coming weeks.
Making Our Way Around the Country
The Washington House Committee on Labor & Workplace Standards held a hearing on H.B. 1076, which would allow private individuals, including interested third parties, to sue employers in the name of the state for alleged violations of workplace protections. The bill is similar to California’s “Private Attorneys General Act” (PAGA). The committee also held a hearing on H.B. 1097, which would increase worker protections through the Department of Labor & Industries (L&I). Under the bill, employers would see increased penalties but it will also allow L&I to divert employer-paid workers’ compensation taxes so L&I could offer some small businesses grants to implement new safety and health requirements during a state of emergency. Finally, a bill (S.B. 5046) was heard last week that would allow lump sum payments to qualifying injured workers in lieu of a lifetime state pension.
The Texas Division of Workers’ Compensation (DWC) adopted a rule requiring utilization reviewers to be in the same or similar specialty as the physician who ordered or provided care to the claimant. The rule was necessary to conform to the changes the Legislature made to the Labor Code in 2019. The rule will become effective Feb. 10. The DWC also adopted amendments that require insurance carriers to electronically submit requests for Subsequent Injury Fund (SIF) reimbursement along with updated required forms. This will become effective Feb. 11. Finally, the DWC adopted a rule allowing health care providers and pharmacy processing agents to electronically submit requests for medical fee dispute resolution. The new rule will become effective Feb. 22.
This month The Way is celebrating its 250th edition. We are so thankful to our over 5,000 readers who have welcomed this publication for the past five years. The show, Friends, produced 236 episodes over 10 years. We see each one of our readers as friends – supporting each other as we navigate the latest federal and state affairs affecting our businesses and our industry. Stay safe, stay well, and stay connected.