By Joseph S. Brown, Esq.
The inauguration of a new president usually brings changes in senior leadership, legislative priorities, and regulatory policy, particularly in the area of labor and employment law. Within the past week, President Biden has signed several executive orders, filled key positions, and announced other policy shifts that are likely to impact the workplace in the areas of safety, LGBTQ protections, labor laws, pandemic response, and immigration. This alert discusses five recently announced developments that may impact your workplace in the months to come:
- Unemployment Benefits
Prior to his inauguration, the Biden Transition Team unveiled its America Rescue Plan, which included a proposal for Congress to approve a $400 per-week unemployment insurance supplement to help workers and self-employed individuals cover household expenses. The proposed supplement would expire on September 30, 2021. But wait. There is more.
According to a recent Fact Sheet, the White House wants to help “ensure that unemployed Americans no longer have to choose between paying their bills and keeping themselves and their families safe from Covid-19 by asking the US Department of Labor to consider clarifying that workers who refuse unsafe working conditions can still receive unemployment insurance.” We will have to wait and see what this aspirational language means in practice, however, it could result in USDOL guidance on what constitutes unsafe working conditions.
- Expanded FFCRA Benefits
As we summarized in a prior alert, Congress was not able to negotiate an extension of federal Families First Coronavirus Response Act (FFCRA) leave beyond its current expiration date of December 31, 2020. Instead, the COVID-19 stimulus package signed by President Trump on December 27, 2020 includes a provision – effective January 1, 2021 – which allows a covered employer to voluntarily continue to provide emergency paid sick leave or emergency paid FMLA Leave under FFCRA (for the same reasons as available under the original statute) and claim the payroll tax credit associated with this leave. The tax credit may only be claimed for leave taken by employees through March 31, 2021.
President Biden’s America Rescue Plan calls on Congress to expand the FFCRA as follows:
- Put the requirement back in place and eliminate exemptions for employers with more than 500 and less than 50 employees, and makes it clear that healthcare workers and first responders get these benefits, too.
- Provide expanded paid sick and family and medical leave with over 14 weeks of paid sick and family and medical leave to help parents with additional caregiving responsibilities when a child or loved one’s school or care center is closed; for people who have or are caring for people with COVID-19 symptoms, or who are quarantining due to exposure; and for people needing to take time to get the vaccine.
- Expand emergency paid leave to include federal workers.
- Provide a maximum paid leave benefit of $1,400 per-week for eligible workers. This will provide full wage replacement to workers earning up to $73,000 annually.
- Reimburse employers with fewer than 500 employees for the cost of this leave. Extending the refundable tax credit will reimburse employers for 100 percent of the cost of this leave,
- Reimburse state and local government for the cost of this leave.
- Extend emergency paid leave measures until September 30, 2021.
Of course, President Biden’s America Rescue Plan is just the opening proposal in what promises to be a hotly contested debate over a stimulus package. We will continue to monitor this legislation. In the meantime, New York employers should be mindful of their obligations under New York’s COVID-19 Paid Leave Law.
- Protecting Worker Health and Safety
On January 22, 2021, President Biden signed an executive order that called for the Occupational Health and Safety Administration (OSHA) to review and update its COVID-19 workplace safety recommendations within the next two weeks. It also ordered the agency to ramp up enforcement efforts.
By February 4, 2021, the USDOL must issue revised guidelines on workplace safety during the COVID-19 pandemic. If temporary emergency standards are necessary, Biden ordered they be issued by March 15. The executive order further directs the USDOL to launch a national program to focus COVID-19- related OSHA enforcement efforts on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.
- Expanded LGBT Protection for Workers
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, 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. While such discrimination has been prohibited under New York’s Human Rights Law for many years, we anticipate more federal government litigation against employers to uphold LGBT rights.
- Regulatory Freeze Pending Review and Withdrawal of Trump-Era Opinion Letters
The President’s Chief of Staff issued a memorandum asking all federal agencies with proposed regulations or ones that have not taken effect yet to hit the pause button.Regulatory freezes are commonly imposed by an incoming presidential administration to give the new leadership team time to review rules that were announced towards the end of the prior administration.
It is widely believed that the memo effectively kills regulations such as the USDOL’s Final Rule on independent contractor classification, which was set to take effect on March 8. As a result, employers should wait and see what guidance the Biden Administration publishes before making any changes to their business arrangements.
As anticipated, the USDOL’s Wage and Hour Division (WHD) announced the withdrawal of three opinion letters issued in the last days of the Trump administration. The opinion letters being withdrawn are:
- FLSA2021-4, which addressed whether a restaurant may institute a tip pool under the Fair Labor Standards Act that includes both servers, for whom the employer takes a tip credit, as well as hosts and hostesses, for whom a tip credit is not taken;
- FLSA2021-8, addressing whether certain distributors of a manufacturer’s food products are employees or independent contractors under the FLSA; and
- FLSA2021-9, addressing whether requiring tractor-trailer truck drivers to implement safety measures required by law constitutes control by the motor carrier for purposes of their status as employees or independent contractors under the FLSA, and whether certain owner-operators are properly classified as independent contractors.
It is anticipated that the Biden USDOL will conduct a thorough review of the other FLSA opinion letters issued under the Trump administration.
In short, this alert just touches on a few of the areas that the Biden Administration will impact employment and labor law. We also anticipate changes to the federal minimum wage, immigration policies, worker classification and other labor laws. It remains to be seen if, and how, these changes will be accomplished through legislation, executive action, or agency rulemaking. Stay tuned.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.