The DC Insider Report – Employers Prepare for Change As the Biden

The DC Insider Report – Employers Prepare for Change as the

Biden-Harris Administration Begins

Rev. March 10, 2021

Fortney & Scott, LLC 1750 K Street, NW, Suite 325 Washington, DC 20006 (202) 689-1200 [email protected] www.fortneyscott.com

Table of Contents

INTRODUCTION...... 1 OVERVIEW ...... 2 COVID-19 DEVELOPMENTS ...... 7 FEDERAL AGENCIES ...... 9 U.S. DEPARTMENT OF LABOR - KEY AGENCIES ...... 9 OFCCP ...... 10 OSHA (COVID-RELATED) ...... 13 W&H DIVISION ...... 17 EEOC ...... 20 NLRB ...... 23 AREAS OF FOCUS ...... 25 D E & I ...... 26 PAY EQUITY ...... 29 CONCLUSION ...... 30 APPENDIX ...... 31 SUMMARY OF EXECUTIVE ORDERS ISSUED BY PRESIDENT BIDEN ...... A-1 SUMMARY OF MEMORANDA AND PROCLAMATIONS ISSUED BY PRESIDENT BIDEN ...... A-6

INTRODUCTION

This DC Insider Report (the “Report”) addresses the changes and developments expected during the Biden-Harris Administration. The Report focuses on key Federal agencies and Congressional developments and the policies that impact the workplace and employers. This Report is for informational purposes and does not provide legal advice nor does it state or reflect political opinions or the views of our clients.

OVERVIEW

TRENDS AND EXPECTATIONS With a major legislative victory for its American Rescue Plan, the Biden Administration continues to move smartly to control the pandemic and reverse the prior administration’s actions especially on race, immigration and COVID-19. The Administration has already issued nearly 40 Executive Orders and many other Presidential Actions in its first 50 days, (summarized in the Appendix to this Report), many of which signaled his Administration’s approach to the workplace and the workforce. Rolling Out the New Agenda. In one of his first actions after his Inauguration, the President appointed acting agency leadership to initially lead Federal agencies while Cabinet nominees are moving through the Senate confirmation process. These acting leaders have taken immediate steps to address the Biden-Harris Administration’s four priority issues – the COVID-19 pandemic; the resulting unemployment and slowing economy; ongoing social justice issues; and global climate change while the Administration’s Cabinet is being confirmed by the Senate. COVID-19 Pandemic. The primary focus of the new Administration is addressing and overcoming the COVID-19 pandemic. Since Inauguration Day, President Biden issued Executive Orders and initiated a wide range of actions to accelerate and expand the Federal response to the pandemic, including:  Greeted the approval of the additional vaccine developed by Johnson & Johnson by brokering the Merck/J&J joint vaccine production deal and pledged to vaccinate every adult American by the end of May;  Ordered stepped-up production of the vaccines, masks, and personal protective gear through the Defense Production Act;  Directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard for workplace protections;  Ordered the establishment of federally-supported community vaccination centers;  Mandated masks and social distancing in Federal buildings and interstate travel;  Expanded paid emergency leave and hazard pay for front line workers;  Renewed the U.S. membership in the World Health Organization; and,  Issued COVID-19-related travel bans and other limitations on travel. American Rescue Plan. The $1.9 trillion bill which passed the House for a second time on March 10 and was signed into law by President Biden provides $1,400 stimulus checks to individuals earning $70,000 or less and to couples earning $150,000 or less; extends federal unemployment benefits of $300 per week and provides benefits to those who can’t work

because of concern over contracting COVID-19; sends $350 billion in aid to states and local governments as well as provides $125 billion for vaccines, testing and public health. This new legislation, which is widely popular with the general public, marks the first major legislative accomplishment for the new Administration, and fulfills campaign pledges by President Biden. Unemployment and Slowing Economy. The new Executive Orders address workers’ interests and the slowing economy by extending protections relating to evictions and student loan repayments; rescinding prior Executive Orders that restricted Federal employees’ union-related activities; urging an increase of the hourly minimum wage for Federal employees to $15; and proposing that Congress provide additional relief, including supplemental unemployment benefits. Social Justice Issues. The Racial Equity Executive Order rescinded the Executive Order restricting certain diversity training by the Federal government and Federal contractors. The Domestic Policy Council, led by Susan Rice (whose position was elevated to the Cabinet), will oversee a comprehensive review of racial barriers in the Federal government. We anticipate that these initiatives are likely to be extended to require Federal contractors to increase diversity and equity in their businesses. The OMB has subsequently issued a memo to all federal agencies to roll back all actions related to the Trump Administration’s EO barring “divisive” diversity training that involved “scapegoating” based on race and sex. A second Executive Order expanded the LGBTQ protections recognized by the Supreme Court in Bostock in the enforcement of all Federal discrimination statutes. In addition, the House has introduced the Equality Act which would expand protections to LGBTQ individuals and would bar the use of the Religious Freedom Restoration Act (RFRA) to challenge LGTBT protections. President Biden also established a White House Gender Policy Council to coordinate federal government efforts to advance gender equity and equality. The Council will report to the President and will have as its members most of his Cabinet. Immigration. The President proposed an expansive immigration bill including an eight-year path to citizenship for certain undocumented aliens that received a mixed response from Congress along party lines. These actions have been well-received by the business community. Executive Orders reversed the Muslim travel ban, reinstated protections for “dreamers” (under DACA), and ordered the reunification of children and parents separated after crossing the U.S. border. However, Texas has already successfully challenged the Executive Order pausing deportation for 100 days. Key Personnel. The Biden Administration immediately filled key positions that do not require Senate confirmation. Each of the newly-appointed senior personnel has extensive experience and expertise; many previously served in the Obama Administration or other governmental roles, and a substantial number also have strong ties to organized labor.

 Department of Labor (DOL) –Marty Walsh, the Mayor of the City of Boston, is expected to be confirmed in a matter of days as DOL Secretary and California Labor Secretary Julie Su nominated as the Deputy Secretary will have her confirmation hearing shortly. Additional key political positions that are not subject to confirmation already have been filled and include the appointments of Patricia Smith (former Solicitor of Labor) as Counsel to the Secretary (she currently is the most senior political leader at DOL); Jenny Yang (former Chair of the EEOC) as the Director of the Office of Federal Contract Compliance Programs (OFCCP); Jessica Looman (former Executive Director at Minnesota State Building and Construction Trades Council) as acting Wage & Hour Division Administrator; and Jim Frederick (formerly with United Steelworkers) as acting head of OSHA.  Equal Employment Opportunity Commission (EEOC) – Commissioner Charlotte Burrows was named as Chair, and Commissioner Jocelyn Samuels as Vice Chair; former Chair Janet Dhillon and former Vice Chair Keith Sonderling remain as Commissioners. The five member EEOC still has a 3-to-2 Republican majority. However, President Biden fired EEOC General Counsel Sharon Gustafson (Republican) when she refused to resign. A new nominee who will be aligned with the Biden Administration’s policies will be announced soon and subject to Senate confirmation.  National Labor Relations Board (NLRB) – In an unprecedented move, the new Administration terminated the NLRB’s General Counsel and Deputy General Counsel, both Republicans, before their terms ended. Jennifer Abruzzo, now at the Communications Workers of America union, has been nominated to fill the General Counsel position. Legal challenges to the terminations have been raised, and a difficult Senate confirmation process for the General Counsel nominee is expected.

Freeze on Regulations. In a sweeping Memorandum issued by the White House, all agency heads were ordered to cease work on pending regulations, guidances, and opinion letters, to withdraw all such materials not yet published, and to freeze regulations published but not yet effective. This freeze included the prior administration’s Independent Contractor and Tip- Pooling regulations which are not expected to be implemented. 117th Congress. The Senate is split 50-50 between Democrats and Republicans, and Democrats have a slim majority in the House of Representatives. The Vice President decides tie votes in the Senate, making Charles Schumer (D-NY) the new Senate majority leader. The Senate is focusing on confirming President Biden’s cabinet and addressing Administration-supported legislation passed by the House. The President’s cabinet nominees, with the exception of the initial nominee to head the Office of Management and Budget, are expected to be confirmed. Passing legislation in the closely divided Congress is challenging for the new Administration. The Senate Democrats relied on special rules governing budget reconciliation bills to fund the COVID relief/economic stimulus that the President proposed, enabling the Democrats to advance their legislative agenda by a simple majority vote and thereby avoiding the Republican’s filibuster threat. Most legislation is subject to the Senate’s filibuster rule, that

requires a 60-vote super majority. Reconciliation, however, can be used in limited circumstances involving budget-related bills, which is why the $15 minimum wage was stripped from the COVID relief bill. There is growing pressure to restrict the use of the filibuster, because the Senate Republicans (who are in the minority) plan to use the filibuster to block a number of the Administration’s legislative priorities. The House is moving ahead with its agenda. In addition to passing the American Rescue Plan and the Equality Act, the House on March 9 passed the most sweeping change to the labor law in 75 years—the Protecting the Right to Organize or PRO Act. The PRO Act which faces a very uncertain future in the Senate would amend the National Labor Relations Act to allow unions and employers to negotiate agreements that would require bargaining unit employees to pay for costs of representation; bar employers from discriminating against workers who strike; impose severe penalties on employers for violating workers’ rights and most importantly, change the criteria used to classify someone as an employee or independent contractor. The bill would also preempt “right to work” laws which currently exist in 28 states. Employers need to keep abreast of the proposed changes to Federal workplace laws, regulations, and policies. The following DC Insider Report by FortneyScott addresses how the Biden-Harris Administration will alter and redirect Federal policies and priorities, resulting in substantial changes at the Federal agencies governing the workplace. FortneyScott will keep this Report updated so employers can stay abreast of these rapidly changing developments and ensure that their compliance efforts remain fully aligned with the ever-changing requirements.

COVID DEVELOPMENTS

COVID-19 DEVELOPMENTS

LATEST DEVELOPMENTS Confronting the COVID-19 pandemic continues to be central to President Biden’s “First Hundred Days.” Problems in distributing the vaccine remain while numbers of vaccinations rapidly grow.  New Vaccines. The approval of the Johnson & Johnson vaccine is a game-changer. It requires just a single-shot and can be stored under normal conditions, which should speed delivery to rural communities in the U.S. and to less-developed countries around the world. Further, the single dose eliminates the elaborate record-keeping and re- appointment burdens that have played an out-sized role in delaying the wider distribution of the vaccine. The J&J/Merck production deal promises to yield a rapid increase the number of available doses world-wide.  Vaccine Distribution Plan: The Biden Administration took additional steps to implement a comprehensive National Strategy to combat the COVID-19 pandemic, pledging to offer vaccines to all adult Americans by the end of May 2021. The President announced the first phase of the federal pharmacy program will launch and select pharmacies nationwide will start offering vaccinations for their communities.  Combatting Discrimination. Despite President Biden’s memorandum condemning xenophobia and discrimination directed at Asian Americans and Pacific Islanders, such discrimination has accelerated. Employers should be alert to combat this form of coronavirus-related harassment and discrimination, as it may quickly become an enforcement priority.  Travel Bans and Limitations Still in Place. International travelers to the U.S. must prove they have a recent negative COVID-19 test before boarding, and must be quarantined after they land. An Executive Order restores the ban on entry to the U.S. for non- citizens traveling from South Africa, Brazil, the United Kingdom, Ireland, and 26 countries in Europe that allow open cross-border travel, to combat new virus strains.  Mask Wearing and Social Distancing Requirements Become Effective. The Executive Order requiring mask wearing, social distancing, and adhering to guidelines issued by the CDC by all Federal employees, Federal contractors, and others on Federal property, is being enforced. The Order also requires mask wearing in airports, transportation stations, and on many airplanes, buses and trains.  The Private Sector Acts. While many businesses are waiting for full FDA approval of the vaccines and clear guidance from the EEOC before sponsoring vaccination programs because of ADA concerns, others are taking actions now. Some international airlines are requiring negative tests from passengers and may soon require proof of vaccinations.

Several companies, including major supermarket chains, are offering incentives, such as cash awards and paid time off, to employees to get vaccinated. Mandatory vaccinations in the workplace continues to be hotly debated, with the government and the military showing reluctance to take that step.  CDC and the schools  The new CDC Guidance, issued February 12, 2021, seeks to strike a middle ground but found a mixed response by failing to issue clearer, simpler mandates, particularly a mandate to re-open schools by a date certain. The CDC guidelines for reopening schools are based on the available scientific evidence and focus on five key Covid-19 mitigation strategies: the universal and correct wearing of masks; physical distancing; washing hands; cleaning facilities and improving ventilation; and contact tracing, isolation and quarantine. Vaccines and testing are not among the "key" strategies the agency lays out, calling them "additional layers" of Covid-19 prevention.  The Guidelines also link school re-opening to community infection levels and urge other mitigation levels, such as wide-spread testing. School systems are counseled to adjust attendance in accordance with community spread levels in a manner that is certain to create frustrations to many involved. Although the Guidance maintains that most schools can open safely, many communities say they are not able to comply the guidance without significant additional funding. ANTICIPATED CHANGES BY BIDEN-HARRIS ADMINISTRATION  The COVID Relief Act passed both Houses of Congress and was sent to the President on March 10, 2021. The COVID provisions enacted include:  Assistance to state, local, and tribal vaccination programs, community vaccination centers around the country, and mobile vaccination units for hard- to-reach areas;  Improving and expanding COVID testing, including providing funds for the purchase of rapid tests, investments to expand lab capacity, and support to help schools and local governments implement regular testing protocols;  Manufacturing and deploying PPE and emergency supplies, and funding for 100,000 public health workers;  Deploying strike teams to aid traditionally underserved communities and long- term care facilities experiencing COVID-19 outbreaks and to conduct improved infection control oversight;  Reinstating and expanding the leave provisions of the Families First Coronavirus Response Act to include employers of more than 500 and narrows exemptions for small employers, making over 100 million additional workers eligible for COVID leave.

FEDERAL AGENCIES U.S. Department of Labor - Key Agencies  OFCCP (Office of Federal Contract Compliance Programs)  OSHA (Occupational Safety and Health Administration)  W&H Division (Wage and Hour Division) EEOC (Equal Employment Opportunity Commission) NLRB (National Labor Relations Board)

OFCCP

LATEST DEVELOPMENTS OFCCP eliminates focused reviews from latest CSAL list. On March 2, 2021 OFCCP announced that it amended its September 11, 2020 Corporate Scheduling Announcement List (CSAL) by removing all establishments selected to receive focused reviews and compliance checks. The agency stated that CSALs that schedule establishment-based compliance reviews, CMCE reviews, FAAP reviews, and university compliance reviews will proceed. The amended CSAL list, the agency’s amended methodology and other scheduling list resources can be found here. OFCCP Indicates Religious Liberty Rescission in Litigation Response. On February 9, 2021, OFCCP requested a stay of two pending litigations – one in the Southern District of New York and the other in the District of Oregon – both of which allege that the expanded religious protections which became effective in January come at the expense of other protected statuses, including LGBTQ individuals, minorities, and women. In seeking the Motions to Stay, the agency stated that it “intends to propose rescission” of the rule “in the new future.” OFCCP to close Contractor Assistance Portal. OFCCP announced it was closing the Contractor Assistance Portal effective March 1, but that it would continue to provide contractor assistance through its Compliance Assistance Guides, FAQs, webinars and training through its Contractor Compliance Institute. The agency continues to have its “Help Desk” to provide contractors with compliance assistance. OMB Memo roll back EO 13950. In response to President Biden’s Executive Order, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, repealing Executive Order 13950 prohibiting divisive diversity training, OMB issued a memorandum directing federal agencies to roll back all actions related to EO 13950 implementing the Executive Order. In response to President Biden’s Executive Order, OFCCP closed the telephone hotline and email address created to collect complaints related to contractors’ alleged noncompliance. The Agency administratively closed all complaints regarding alleged noncompliance with Executive Order 13950. These complaints had previously been held in abeyance pursuant to a nationwide preliminary injunction. In addition, OFCCP will not enforce any of the provisions required by Executive Order 13950 contained in government contracts or subcontracts. OFCCP Director and Deputy Director  Jenny Yang who became OFCCP Director on January 20th after serving as an EEOC Commissioner from 2012 to 2014, and as EEOC Chair from 2014 to 2017. As Ms. Yang implemented the EEOC’s Component 2 pay data collection, her experience makes it more likely that OFCCP will implement a pay data collection for federal contractors. Ms.

Yang also brings significant experience in investigating and bringing enforcement actions to address systemic discrimination claims. ANTICIPATED CHANGES BY BIDEN-HARRIS ADMINISTRATION Executive Orders, Regulations, and Legislation  Pay Data Collection. It is likely that the Biden Administration will initiate a new pay data collection through OFCCP as EEOC has asked the National Academies of Science, which announced its expert panel, to provide recommendations on how it should collect pay data. (See more detail in the EEOC section).  Pay Equity for Women and Minorities. Expanded enforcement of systemic compensation claims also is likely, although attempts to return to the highly-criticized compensation discrimination criteria that was followed by the Obama Administration will have to overcome the decisions in the Oracle and Analogic litigations, detailed below.  Intersectionality. The Biden Administration is expected to place more focus on the intersection of race and gender in its discrimination analyses by revising its current regulations or Directives to require Federal contractors to evaluate these issues.  Annual Certification of Federal Contractors. We anticipate that the Biden Administration will finalize the annual certification obligation as the government currently does not have a list of all Federal contractors and subcontractors. What is less clear is whether the Biden Administration also will require AAPs to be submitted annually.  Memorandum of Understanding with DOJ and EEOC. The Biden Administration is likely to revise the most recent MOU among DOL, DOJ, and EEOC to fully return the investigation of Title VII charges to EEOC.  Artificial Intelligence. OFCCP is expected to expand its focus to address how Artificial Intelligence (AI) is used for hiring and employment decisions. There have been efforts by Congress to spur the EEOC to review AI issues, and, in the past, Jenny Yang has expressed interest in how AI and big data efforts affect employment. Litigation  While OFCCP in the Trump Administration focused on settling alleged violations, the Biden Administration will take a much more aggressive approach, pursuing a robust enforcement program that includes new litigation claims.

Congress/Legislation  Congressional Review Act. Congress may use the Congressional Review Act to reverse OFCCP’s recent regulations including the procedures to address employment discrimination by Federal contractors (November 2020).  Paycheck Fairness Act. Congressional Democrats have again introduced the Paycheck Fairness Act which would require OFCCP to conduct an annual survey of pay and hiring data from federal contractors.  Equality Act. The House passed the Equality Act which would expand protections for LGBTQ individuals and override the Religious Freedom Restoration Act KEY TRUMP ADMINISTRATION ACTIONS NOT YET ADDRESSED BY BIDEN-HARRIS ADMINISTRATION  Replacing Active Case Management streamlined the compliance review process, and Early Resolution Conciliation Agreements (ERCAs) increased settlements and expanded oversight and monitoring by the Agency.  OFCCP lost the largest litigation case in the Agency’s history in a lawsuit against Oracle. Following extended litigation and a merits trial in OFCCP v. Oracle America, Inc., DOL’s Administrative Law Judge ruled that OFCCP’s systemic compensation discrimination claims failed as a matter of law. OFCCP’s revised efforts on compensation will need to take into account these significant rulings.

OSHA (COVID-RELATED)

LATEST DEVELOPMENTS Protecting Workers

 On February 25, 2021, the DOL Office of Inspector General--Office of Audit, issued a highly critical report to OSHA titled “COVID-19: Increased Worksite Complaints and Reduced OSHA Inspections Leave U.S. Workers’ Safety at Increased Risk”.  Specifically, the OIG found:  Reduced inspections during the pandemic subjected employees to greater safety risk,  Most inspections were not conducted onsite during the pandemic  While OSHA issued COVID-19 guidance, as guidance it is not enforceable, and  OSHA needs to issue stronger guidance to its staff to prioritize resources based on high-risk employers.  OIG made following four recommendations to OSHA:  Improve OSHA’s inspection strategy by prioritizing very high and high-risk employers for COVID-19 related onsite inspections;  Ensure remote inspections are tracked retroactive to February 1, 2020, and going forward;  Compare remote inspections to onsite inspections and document analysis of the frequency and timeliness of inspections in identifying and ensuring abatement of worksite hazards; and  Analyze and determine whether establishing an infectious disease-specific ETS is necessary to help control the spread of COVID-19 as employees return to worksites.  OSHA concurred with the four recommendations and provided that pursuant to President Biden’s January 21, 2021 Executive Order on Protecting Worker Health and Safety, it has already begun to work on “launching a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk.”  On February 19, 2021, DOL announced that OSHA will oversee worker retaliation complaints filed under two new whistleblower statutes: 1) the Criminal Antitrust Anti- Retaliation Act; and 2) the Anti-Money Laundering Act. Until OSHA issues an interim final rule on COVID-19, OSHA will use current procedures to process these whistleblower complaints.  On February 5, 2021, OSHA issued a Proposed Rule to update its Hazard Communication Standard (HCS) to align with the seventh revision to the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The update is focused on increasing

worker protections and reduce incidence of chemical-related occupational illnesses and injuries by improving information on labels and Safety Data Sheets for hazardous chemicals.  On January 29, 2021, OSHA issued its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, in response to President Biden’s Executive Order on the safety of workers. The new Guidance – which it is not a standard or regulation; it does not create legal obligations – is a likely template for the more formal OSHA Emergency Temporary Standard believed to be in the works. The new Guidance includes the following provisions:  Intended to inform employers/workers – outside of healthcare – to help identify risks of exposure to and/or contracting COVID-19 at work and help to determine appropriate control measures.  Recommends implementing a workforce COVID-19 prevention program, that includes the following actions, to mitigate COVID-19 in the workplace:  Assign a workplace COVID-19 issue coordinator;  Conduct a hazard assessment to identify COVID-19 exposure risks;  Identify measures that limit the spread of COVID-19:  Remove potentially infected people from the workplace  Implement physical distancing or installing barriers  Use face masks  Improve ventilations  Use appropriate PPE  Provide supplies for personal hygiene  Perform routine cleaning and disinfection  Consider reasonable modifications for high-risk workers such as working from home and less densely-occupied and/or better ventilated locations;  Educate and train employees, in language that they understand, basic facts about COVID-19, and the employer’s workplace COVID-19 prevention program;  Perform enhanced cleaning and disinfecting;  Provide COVID-19 screening and testing in accordance with state and local guidance;  Record and report COVID-19 infections and death on Form 300 logs;  Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and  Provide vaccinations to the workforce without cost.

OSHA Leadership  James Frederick, Deputy Assistant Secretary. James Frederick comes to the position from a National Safety Council Workplace Safety group, and he previously spent 20+ years as the top investigator in the United Steelworkers’ Health, Safety, and Environment Department.  Joseph Hughes, Jr., Deputy Assistant Secretary for Pandemic and Emergency Response. In filling this newly created Deputy position at OSHA, Joseph Hughes comes from the National Institute of Environmental Health Sciences. One of his top priorities will be addressing an Emergency Temporary Standard related to COVID-19. ANTICIPATED CHANGES BY BIDEN-HARRIS ADMINISTRATION OSHA Leadership  The Assistant Secretary of Labor position that heads OSHA requires Senate confirmation; a nominee is expected after Marty Walsh is confirmed as DOL Secretary.  Regulations and Legislation  OSHA will publish a new Federal COVID-19 Emergency Temporary Standard which can be issued initially without notice and comment if the Agency determines that workers are in grave danger and that an emergency standard is needed to protect them. A final regulation then must be published within six months.  The Biden Administration will ask Congress to give OSHA authority to issue a COVID-19 protection standard that covers a broad set of workers, including “frontline” state and local government employees who are not traditionally protected by OSHA regulations. The Administration will also ask for funding for OSHA enforcement.  OSHA also will target the worst violators, increase the number of inspectors, and develop strategies for addressing the most dangerous workplace hazards. Litigation  Litigation challenging the Emergency Temporary Standard addressing COVID-19 is expected. Similar claims challenging both the California and Virginia Emergency Standards currently are pending before the courts. KEY TRUMP ADMINISTRATION ACTIONS NOT YET ADDRESSED BY BIDEN-HARRIS ADMINISTRATION  OSHA did not have a confirmed head of agency during the entire Trump Administration.  Virginia issued a first-in-the-nation Emergency Temporary Standard to protect workers, and California, Michigan and Oregon also issued emergency standards. Other states

have issued guidelines and some cities also have issued protective ordinances for workers. Litigation  Litigation challenging the Emergency Temporary Standard addressing COVID-19 is expected. Similar claims challenging both the California and Virginia Emergency Standards currently are pending before the courts. KEY TRUMP ADMINISTRATION ACTIONS NOT YET ADDRESSED BY BIDEN-HARRIS ADMINISTRATION  In FY 2020 (Oct. 1, 2019 through Sept. 30, 2020), the Agency conducted 21,674 inspections in response to worker complaints, injuries, fatalities, and referrals related to the coronavirus. OSHA received 20,541 complaints – including 9,189 coronavirus- related complaints – and investigated every complaint.  OSHA received and investigated 11,865 whistleblower complaints. Nearly a quarter of the complaints (3,437) were COVID-related. Monetary settlements or merit awards totaled $30.1 million, nearly doubling the $16 million from the previous year.  OSHA did not have a confirmed head of agency during the entire Trump Administration.

W&H DIVISION

LATEST DEVELOPMENTS  New Joint Employer Regulation Sent to White House. The new joint employer rule sent to OMB on February 23 is expected to be approved and issued very shortly. The new rule will supplant the Trump-era regulation that was blocked by the courts.  New Independent Contractor Regulations sent to OMB. The DOL sent a new proposal on independent contractors entitled “Independent Contractor Status Under the Fair Labor Standards Act" to OMB for review on March 5.  DOL Delays Effective Dates for Trump Administration Regulations. As expected, the Wage and Hour Division issued final rules delaying the effective dates of the Tip Pooling regulation (allowing non-tipped employees to share in tips) and the Independent Contractor regulation (adopting the “economic reality” test), both of which were issued during the final months of the Trump Administration and were set to become effective on March 1 and March 8, respectively. The effective date for the Tip Pooling regulation will be delayed until April 30, and the Independent Contractor regulation will be delayed until May 7. The Department’s decision to delay the effective dates of these regulations was expected following a memorandum issued by President Biden on his first day in office which directed Agency and Department heads to consider delaying regulations with pending effective dates to allow for further review and consideration of relevant legal and policy issues. We anticipate that following this review period, the Department will take steps to roll back and/or replace the Tip Pooling and Independent Contractor regulations.  Trump-Era Opinion Letters Withdrawn by DOL. On January 26, the Wage and Hour Division withdrew three Opinion Letters issued during the final week of the Trump Administration which provided guidance on the now frozen Independent Contractor and Tip Pooling regulations. The Wage and Hour Divisions explained that the withdrawn Opinion Letters (FLSA 2021-4, FLSA 2021-8 and FLSA 2021-9) “were issued prematurely because they are based on rules that have not gone into effect.” While we anticipate that the Biden Administration will continue to use Opinion Letters to offer guidance to employers, it is apparent that Trump-era Letters which the new Administration disagrees with will be quickly revoked.  Push to Increase Federal Minimum Wage. As part of his goal of increasing the minimum wage for Federal workers, the President issued an Executive Order on January 22nd, directing the Office of Personnel Management to begin developing recommendations to implement a $15 minimum wage for Federal employees and contractors.

 PAID Program Cancelled. On January 29, the Wage and Hour Division announced that it was terminating the Payroll Audit Independent Determination (PAID) program. Under the PAID Program, which was launched by the Trump Administration in 2018, employers were able to self-report wage and hour violations without the threat of litigation or additional damages.  In announcing the ending of the PAID program, new acting Wage and Hour Division Administrator, Jessica Looman, signaled a return to Obama-era approach to enforcement, stating “The Payroll Audit Independent Determination program deprived workers of their rights and put employers that play by the rules at a disadvantage. The U.S. Department of Labor will rigorously enforce the law, and we will use all the enforcement tools we have available.” New Leadership On his first day in office, President Biden appointed Jessica Looman to serve as Acting Wage and Hour Division Administrator. Looman, a former Minnesota construction union official, will be another union-friendly voice inside the Labor Department, alongside Marty Walsh, President Biden’s selection for Secretary of Labor. ANTICIPATED CHANGES BY BIDEN-HARRIS ADMINISTRATION Executive Orders, Regulations, and Legislation  Increased Minimum Wage Legislation. One of President Biden’s campaign promises, and a key component of his American Rescue Plan, was raising the federal minimum wage to $15. Congressional Democrats attempted to accomplish this by including the increase as part of the newest COVID relief package; however, the measure was removed from the legislation. As a result, any proposed minimum wage increase will likely have to be considered as a standalone bill, but it appears unlikely that any bill proposing a $15 minimum wage would receive sufficient bilateral support to allow passage in the Senate.  Prevailing Wages and Benefits – SCA and DBA. The infrastructure legislation that the Biden Administration is expected to introduce will include the payment of prevailing wages and benefits for workers performing the newly authorized infrastructure work. Additionally, increases to the wage and benefit rates for both the Service Contract Act (SCA) for service workers and the Davis Bacon Act (DBA) for Federal construction projects are expected, and we expect Federal paid sick leave provisions in all SCA and DBA contracts.  Overtime Exemption Rule. We expect the Biden Administration to revise the Trump Administration’s Overtime Exemptions to increase the salary basis test to at least $47,476, as previously proposed by Obama-era rule, and to modify the job duties that qualify for exemptions. The Biden Administration may also add a cost of living increase and raise the compensation level for the highly-compensated exemption.

Congress/Legislation  The Biden Administration is expected to push for paid leave benefits for all employees. KEY TRUMP ADMINISTRATION ACTIONS NOT YET ADDRESSED BY BIDEN-HARRIS ADMINISTRATION  The W&H Division revised the Regular Rate used to calculate overtime, clarifying which payments can be excluded from the regular rate calculation. The Agency also updated the Fluctuating Workweek Rule to outline which bonuses, premium payments, and hazard pay must be included in the regular rate calculation.

EEOC

LATEST DEVELOPMENTS Biden Fires EEOC GC On March 5th President Biden fired EEOC General Counsel Sharon Fast Gustafson after she refused to resign at his request. Ms. Gustafson was appointed by President Trump and confirmed by the Senate in August 2019. Her term was not scheduled to end until 2023. It is not yet clear who will replace Ms. Gustafson. New Conciliation Rule Goes into Effect EEOC’s Final Rule Updating the Commission’s Conciliation Procedures (making conciliation more transparent) became effective on February 16, 2021. Employers who begin the conciliation process after February 16, 2021, will have access to additional information. The revised regulation was not subject to the Biden Administration’s halt of new administrative rules because it was published in the Federal Register prior to January 20, 2021. It is possible that Congress will use the Congressional Review Act to reverse the rule, but that possibility is seeming increasingly unlikely. Alternatively, the Commission may revise this regulation, once the majority of EEOC Commissioners is Democratic. EEOC Halts New Regulations Governing Union Official Time and Voluntary Wellness Programs EEOC has halted two other regulatory actions taken in the final days of the Trump Administration. Although the Commission voted in favor of regulations governing the use of union “official time” and voluntary corporate wellness programs last month, neither rule had been published in the Federal Register prior to Inauguration Day. Employers who are seeking to encourage their workers to get the COVID vaccine have been focused on the incentives that can be offered under the new rule and have asked EEOC for clarification as to types of incentives they could lawfully offer employees without running afoul of the ADA or GINA. EEO-1 Data Collection Resumes  EEOC is planning to resume EEO-1 data collection this spring after the COVID-19 pandemic caused the agency to delay its data collection last year. Once the EEOC opens its new EEO-1 Online Filing system a date TBA in April 2021, covered private employers must submit their 2019 and 2020 EEO-1 Component-1 data. The agency continues to add information about the process to a new dedicated WEBSITE for data collection. In the interim, EEO-1 filers with inquiries are being directed to complete the CONTACT Us form on the new website.

EEOC Concludes Conciliation and Mediation Pilots  On January 27, 2021, EEOC announced that it concluded two pilot programs on conciliation and mediation. EEOC will continue mediation practices it found to be useful including using video technology to conduct virtual mediations, sending mediation participants electronic surveys, and allowing parties to request mediation at any point during the administrative process.

Personnel Changes: EEOC Chair & Vice Chair  On January 22, 2021, President Biden named Commissioner Charlotte A. Burrows as EEOC Chair and Commissioner Jocelyn Samuels as EEOC Vice Chair; both are Democrats.  Chair Burrows has served as an EEOC Commissioner since 2015, and she was unanimously reconfirmed in 2019 to a term that will end in 2023. In her first speech since being named Chair, Burrows stated that she was planning to hold a Commission meeting focusing on the pandemic’s impact on the workforce and to enhance EEOC’s outreach to members of the military and to collaborate with DOL’s Office of Federal Contract Compliance Programs, (OFCCP) on veteran’s issues.  Vice Chair Samuels joined the Commission this past October, from her position as Executive Director of the Williams Institute. Vice Chair Samuels is expected to be reconfirmed when her current term expires in July 2021.

EEOC Legal Counsel  Career employee Carol Miaskoff has been appointed to serve as EEOC’s Acting Legal Counsel after Andrew Maunz tendered his resignation on January 22, 2020. (EEOC has both a Senate-confirmed General Counsel and an appointed Legal Counsel, and these personnel changes only affect the Legal Counsel.) ANTICIPATED CHANGES BY BIDEN-HARRIS ADMINISTRATION

The Commission  Republican appointees currently fill three of the five Commissioner seats. Although it is customary for the EEOC Chair to voluntarily step down at the start of a new administration, former Chair Janet Dhillon has indicated that she may stay until her current term ends in July 2022. Other Executive Orders and Regulations  Bostock Guidance. In response to the Supreme Court’s 2020 landmark decision in Bostock v. Clayton County, holding that sexual orientation and gender identity are protected under Title VII, President Biden signed EO 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, directing all Federal agencies to implement the Bostock decision.

 Collecting Compensation Information. The Biden Administration will work to restart its pay data collection effort. However, because the Democrats may not control the Commission for over a year and because the EEOC will not receive the results of the pay data collection study it previously commissioned until the end of 2021, it is likely that OFCCP, headed by former EEOC Chair Jenny Yang, initially will take the lead on the collection of pay data from employers.  Harassment Guidance. The EEOC voted on a new omnibus harassment guidance during the Trump Administration, but which was held in abeyance by the administration. Once the majority is Democratic, the EEOC will issue revised harassment guidance.  Religious Discrimination Guidance. It is likely that the Biden Administration will revisit and revise EEOC’s Compliance Manual on Religious Discrimination, which was approved on January 15, 2021.  AI Hiring Technologies. Increased EEOC scrutiny of AI applications, including an uptick in systemic investigation and litigation, is likely. Congress/Legislation

The Equality Act. Passage of The Equality Act (H.R. 5, S. 393) which would provide greater protections in federal law for LGBTQ Americans in employment, education, housing, credit, jury service and other areas. is a top priority for the 117th Congress. The Equality Act passed in the U.S. House of Representatives on February 25, 2021, with a bipartisan vote of 224-206. The Pregnant Workers Fairness Act. The Pregnant Workers Fairness Act (H.R. 2694) would require private sector employers with more than 15 employees as well as public sector employers to make reasonable accommodations for pregnant workers (employees and job applicants with known limitations related to pregnancy, childbirth, or related medical conditions) in a way similar to the Americans with Disabilities Act. OTHER KEY TRUMP ADMINISTRATION ACTIONS NOT ADDRESSED BY BIDEN-HARRIS ADMINISTRATION  The Agency issued COVID-19 FAQs for employers, What You Should Know About COVID- 19 and the ADA, the Rehabilitation Act, and Other EEO Laws.  On January 14, 2021, the Commission limited the broad litigation authority held by the EEOC’s General Counsel since 1995 and restored the Commission’s authority to determine whether to file significant litigation.

NLRB

LATEST DEVELOPMENTS

 New General Counsel Named. President Joe Biden nominated Jennifer Abruzzo to be General Counsel. Abruzzo, an attorney with the Communications Workers of America, served as deputy general counsel at the Board in the past. Her appointment solidifies the role of “Big Labor” at the agency. Her nomination has become a political “flashpoint” because of the abrupt termination of her predecessor, Peter Robb, and she faces stiff opposition in the Senate.  Repercussions of GC Robb Firing. The firing of General Counsel Robb continues to reverberate throughout the Labor Bar and beyond. The legality of the termination as well as the legal authority of Acting GC Ohr have already been challenged, with companies disputing the viability of unfair practice charges and a Board Order. Among the main arguments employers will offer is that Robb’s termination violates the National Labor Relations Act, which states that GCs serve four-year terms "with the advice and consent of the Senate." The legal challenges to the new General Counsel’s legitimacy will render a significant part of the Board’s work (prior to November 16, 2021, the end of Rob’s original term) ineffective pending a ruling – probably by the Supreme Court – as to the permissibility of Robb’s termination. The GC’s anticipated rescission of the “gig-worker” Memorandum and the widely-watched union election at an Amazon warehouse in Alabama will bring the GC’s authority into national prominence, as the GC must certify the election result. The GC’s actions will be challenged in court.  Implications of Legal Challenges. The Board’s resources will be absorbed in this legal battle for years and countless actions by the GC could be delayed for a considerable period and then set aside. The Board faced a similar situation when the Supreme Court’s 2014 decision in NLRB v. Noel Canning invalidated some 700 reported and unreported rulings because the Obama administration made improper recess appointments to the Board. At that time, a compliant NLRB later ratified most of its rulings affected by the Canning decision. Should a Republican majority continue on the Board when a new decision is issued, no similar ratification is anticipated. Further, the GC’s actions cannot be easily delegated. A legal “limbo” will persist.  New Acting General Counsel Acts. Despite the legal uproar, Acting General Counsel Peter Sung Ohr moved swiftly to bring a different view to the Board by withdrawing 12 of Robb’s Memoranda or Directives, in a move to strengthen unions and return more authority to the Regional Directors. Ohr also withdrew a complaint approved by his predecessor challenging “neutrality agreements” between employers and unions in Seattle.

 New Member Delayed? One ramification of the Robb termination dispute is likely to be that the confirmation hearing of a still to be named fifth member (Democratic) to the NLRB will be turned into another battle about the Robb firing, delaying bringing the Board to full strength. The conflict is expected to affect the confirmation of a second nominee who will secure a Democratic majority when Member Emanuel’s term ends in August 2021.  Regulations. The hold on all executive agencies’ pending regulations issued by the White House froze the DOL’s recent Independent Contractor regulation which will set up a conflict with the analogous regulation published by the NLRB, which cannot be held in abeyance by the recent directive, as it is already in effect. Given the broad discretion granted to the GC regarding enforcement of Board standards, just how the Acting or new GC enforces the IC regulation may create still more legal challenges. ANTICIPATED CHANGES BY BIDEN-HARRIS ADMINISTRATION

Executive Orders, Regulations, and Legislation  Joint Employer. The Biden DOL is replacing the Trump Administration’s Joint Employer Rule, creating a conflict with the NLRB’s published regulation on the same subject.

Congress/Legislation  Protecting the Right to Organize (PRO) Act. The PRO Act was passed by the House on March 10th. It remains a principal objective on the Biden Administration’s labor agenda. The PRO Act would fundamentally recast the labor laws by making union organizing easier, increasing penalties for obstructing unions, and broadening the types of workers who can form unions. The PRO Act is certain to face strong opposition in Congress, and its passage is uncertain unless the Senate’s filibuster rule is changed. KEY TRUMP ADMINISTRATION ACTIONS NOT YET ADDRESSED BY BIDEN-HARRIS ADMINISTRATION  A General Counsel Advice Memorandum was issued concluding that “gig workers” were non-employees. A rescission of the Memo is expected, but will be challenged as discussed above.

AREAS OF FOCUS

 D E & I (Diversity, Equality & Inclusion)  Pay Equity

D E & I

LATEST DEVELOPMENTS Agency Action On February 3, the U.S. Department of Justice (DOJ) withdrew the lawsuit it filed against Yale University in October 2020. The complaint alleged that the University illegally discriminated against white and Asian American applicants in its undergraduate admissions process. Justice Department lawyers submitted a four-sentence "notice of voluntary dismissal" requesting that the court dismiss the matters without prejudice to the Agency. The Department of Education closed its investigation into Princeton University’s admission program. On February 25, Students for Fair Admission, Inc. sought U.S. Supreme Court review of the appeals court decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. That ruling held that Harvard’s use of race in its admissions process does not violate federal civil-rights law. The Trump Department of Justice filed an amicus brief supporting Students for Fair Admission before the First Circuit. Even if the Supreme Court accepts this case for argument, there is little chance that the Biden DOJ will support the Petitioners in this case. Although not an employment case, this matter has implications for affirmative action and voluntary diversity goals in the employment arena. Presidential Memoranda  The January 26, 2021 Presidential Memorandum, Condemning and Combating Racism, Xenophobia, and Intolerance Against Asian Americans and Pacific Islanders in the United States, condemns all acts of racism, xenophobia and intolerance toward Asian American and Pacific Islander (AAPI) communities stemming from the COVID-19 pandemic and directed the Secretary of Health and Human Services to collaborate with the COVID-19 Health Equity Task Force to consider issuing guidance describing best practices for advancing cultural competency. Federal agencies were tasked with ensuring that all official actions, documents, and statements, particularly those addressing COVID-19, do not exhibit or contribute to racism, xenophobia, and intolerance against AAPI communities.  A second January 26 Presidential Memorandum, Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies, commits the government to work towards ensuring communities of color access to equal housing opportunities, including home ownership and renting and ending housing discrimination and directed HUD to undertake a review of recent regulatory actions to ensure the Fair Housing Act promotes fair housing and eliminates unfair discriminatory practices.

 On January 25, President Biden issued an Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform repealing President Trump’s March 23, 2018, and August 25, 2017 Presidential Memoranda banning transgendered individuals from serving in the U.S. military. Personnel Changes  President Biden appointed Susan Rice to lead the Domestic Policy Council, now a Cabinet-level position. Susan Rice has begun a review of racial barriers in the Federal government and will develop a comprehensive plan to address any barriers. Executive Orders:  Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities, was issued by President Biden, and it repeals Executive Order 13950, known as President Trump’s “Anti-Bias Training” Order. The new Executive Order requires Federal agencies to evaluate their programs and policies to determine whether they “perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups.” The Order underscores the need for the Federal Government to take an active role in removing barriers to accessing programs and benefits that perpetuate persistent poverty and inequality.  Agency heads are directed to select specific programs and policies for review to determine whether “underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs.”  Agency heads are expected to deliver an action plan based upon their findings within 200 days to address unequal barriers for equal opportunity. The Administration’s goal is to “root out systemic racism” and barriers that have perpetuated discrimination and the denial of civil rights and equality to underserved communities, including individuals of color and others who have been marginalized.  Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, sets forth the Biden Administration’s intent “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” The Administration also intends to investigate “overlapping forms of discrimination.”

 Executive Order 14020, Establishment of the White House Gender Policy Council, sets forth the Biden Administration’s intent to “establish and pursue a comprehensive approach to ensure the Federal Government is working to advance equal rights and opportunities, regardless of gender or gender identity, in advancing domestic and

foreign policy—including by promoting workplace diversity, fairness, and inclusion across the Federal workforce and military.”

ANTICIPATED CHANGES BY BIDEN-HARRIS ADMINISTRATION Executive Orders, Regulations, and Legislation  Legislation. Passage of the Equality Act will be a key focus for the Biden Administration.  Agency Action.  EEOC. The Biden Administration may turn to EEOC to issue guidance supporting the implementation of voluntary diversity goals and aggressive efforts to improve representation in the workplace.  OFCCP. An increased focus on contractors’ efforts to address race discrimination, as outlined in President Biden’s Executive Order addressing racism, is expected. To free up resources for the focus on race discrimination, the Agency discontinued the “focused reviews” that were developed by the prior administration and assessed compliance with the contractors’ obligations for individuals with disabilities, protected veterans, and religion. Additionally, the renewed use of pay equity audits and the assessment of whether “glass ceilings” are limiting the advancement of women and minorities are likely tools that will be used by OFCCP to advance diversity, equity, and inclusion policies.

PAY EQUITY

LATEST DEVELOPMENTS  Paycheck Fairness Act. On January 28th, Democrats reintroduced the Paycheck Fairness Act. Rep. Rosa DeLauro (D-Conn.) and Sen. Patty Murray (D-Wash.) stated that the latest Bill has the support of all the Congressional Democrats and two House Republicans as co-sponsors. The current Bill is identical to the bill that passed the House in 2019. Senate passage is doubtful.  The Bill seeks to materially amend the Equal Pay Act by significantly narrowing an employers’ primary defense – that the identified pay disparity is the result of a factor “other than sex.” If passed, the language of the defense would be “a bona fide factor other than sex, such as education, training, or experience.”  The Paycheck Bill also seeks to expand the type of remedies available to employees under the Equal Pay Act to include compensatory and punitive damages.  Additionally, the Paycheck Bill would institute a national pay transparency requirement and a nationwide ban on requests for prior salary history of applicants.  Expert Panel to Review EEO-1 Report, Component 2. On January 28th, the National Academies of Sciences, Engineering, and Medicine announced the appointment of an expert panel to evaluate the quality of compensation data collected from U.S. employers by EEOC through its EEO-1 Report, Component 2. The panel will study the quality and usefulness of the 2019 compensation data collected in 2020, review the methods of the collection, and consider data quality parameters. The panel will issue a final report with its conclusions and recommendations to EEOC.  Agency Leadership. On January 20, 2021, President Biden appointed Jenny Yang to serve as the Director of OFCCP. As Director, Jenny Yang is expected to bring a laser focus on pay equity to OFCCP, making compensation enforcement a priority and reviving OFCCP’s 2014 proposed pay collection proposal. ANTICIPATED CHANGES BY BIDEN-HARRIS ADMINISTRATION  Increased Enforcement Activity. President Biden has also been clear about his commitment to ensuring that the equal employment opportunity laws, including laws prohibiting discrimination in pay, are vigorously enforced. To that end, he has stated his intent to expand funding to the three Federal civil rights enforcement agencies – DOJ, EEOC, and OFCCP – to support increased staffing and litigation.

CONCLUSION

The Biden-Harris Administration is rapidly modifying and redirecting Federal policies and priorities, resulting in substantial changes at the Federal agencies and the laws and regulations governing the workplace. FortneyScott will periodically update this DC Insider Report so that employers can stay abreast of these rapid developments and ensure that their compliance efforts remain fully aligned with the ever-changing requirements. Should you need more information or have questions about how changes may affect your workplace, please contact your FortneyScott attorney or email us at [email protected]. Additionally, FortneyScott has launched a new podcast, the DC Insider - Employer Update™, that includes an 8-part series The first 100 Days of the Biden Administration. The podcast can be accessed here. Please subscribe to the podcast to ensure that you stay up to date on these developments.

APPENDIX

SUMMARY OF EXECUTIVE ORDERS ISSUED BY PRESIDENT BIDEN Rev. March 10, 2021

Executive Title Issue Date Explanation Orders

13985 Advancing Racial Equity and 1/20/2021 Outlines that the new administration will Support for Underserved "pursue a comprehensive approach to Communities Through the Federal advancing equity for all, including people of Government color and others who have been historically undeserved, marginalized, and adversely affected by persistent poverty and inequality; rescinds EO 13950 and 1776 Commission.

13986 Ensuring a Lawful and Accurate 1/20/2021 Requires non-citizens to be included in Census Enumeration and Apportionment and apportionment of congressional Pursuant to the Decennial Census representatives.

13987 Organizing and Mobilizing the 1/20/2021 Creates position of COVID-19 Response United States Government to Coordinator, reporting directly to Biden and Provide a Unified and Effective managing efforts to produce and distribute Response to Combat COVID-19 and vaccines and medical equipment. to Provide United States Leadership on Global Health and Security

13988 Preventing and Combating 1/20/2021 Requires all federal discrimination laws to Discrimination on the Basis of expand protections against sex discrimination Gender Identity or Sexual to include sexual orientation, gender identity, Orientation gender expression.

13989 Ethics Commitments by Executive 1/20/2021 Requires all government appointees to agree Branch Personnel to refuse gifts from lobbyists and for lobbying for two years after government service.

13990 Protecting Public Health and the 1/20/2021 Cancels Keystone XL pipeline and refocusing Environment and Restoring Science on climate change including revoking more to Tackle the Climate Crisis than 100 prior administration actions on environment.

13991 Protecting the Federal Workforce 1/20/2021 Requires masks and social distancing on all and Requiring Mask-Wearing federal properties, on federal lands and by government contractors.

13992 Revocation of Certain Executive 1/20/2021 Directs OMB to develop recommendations to Orders Concerning Federal modernize regulatory review and revokes Regulation Trump regulatory approval process.

13993 Revision of Civil Immigration 1/20/2021 Revokes Trump policy that cracked down on Enforcement Policies and Priorities communities shielding undocumented

Executive Title Issue Date Explanation Orders immigrants and promotes national and border security.

13994 Ensuring a Data-Driven Response to 1/21/2021 Directs all departments and agency heads to COVID-19 and Future High- “facilitate” the gathering, sharing and Consequence Public Health Threats publication of COVID-19 related data to inform decision making and public understanding.

13995 Ensuring an Equitable Pandemic 1/21/2021 Creates COVID-19 Health Equity Task Force to Response and Recovery provide recommendations on allocation of resources and funding in light of “disparities” in COVID-19 outcomes by race, ethnicity, other factors.

13996 Establishing the COVID-19 1/21/2021 Creates Pandemic Testing board to coordinate Pandemic Testing Board and national efforts to promote COVID-19 Ensuring a Sustainable Public diagnostic screening and surveillance testing Health Workforce for COVID-19 and and to facilitate distribution free COVID-19 Other Biological Threats tests for those without comprehensive health insurance.

13997 Improving and Expanding Access to 1/21/2021 Directs Secretary of HHS to support research Care and Treatments for COVID-19 on COVID-19 treatments and increase support for critical care and long-term care facilities.

13998 Promoting COVID-19 Safety in 1/21/2021 Mandates mask wearing on all forms of public Domestic and International Travel transportation including airports, airplanes and buses.

13999 Protecting Worker Health and 1/21/2021 Directs DOL to revise and issue new guidance Safety for employers to promote health and safety of their workers.

14000 Supporting the Reopening and 1/21/2021 Directs Education and DHHS to develop Continuing Operation of Schools guidance for elementary and secondary and Early Childhood Education schools to use to decide whether and how to Providers reopen and remain open for in-person learning safely.

14001 A Sustainable Public Health Supply 1/21/2021 Requests heads of various departments to Chain assess nationwide availability of PPE and other resources needed to distribute COVID-19 tests and coronavirus vaccines and to develop strategy for supplies for future pandemics and biological threats. 14002 Economic Relief Related to the 1/22/2021 Directs all government departments and COVID-19 Pandemic agencies to identify actions they can use to address current economic crisis resulting from pandemic.

Executive Title Issue Date Explanation Orders 14003 Protecting the Federal Workforce 1/22/2021 Revokes Trump-era actions that gutted federal employee protections and asked DOL to develop recommendations that all federal employees receive $15 minimum wage. 14004 Enabling All Qualified Americans to 1/25/2021 Reverses transgender military ban. Serve Their Country in Uniform 14005 Ensuring the Future Is Made in All 1/25/2021 Directs the federal government should procure of America by All of America’s goods, products, materials, and services from Workers American businesses. 14006 Reforming Our Incarceration 1/26/2021 Phases out the Federal Government’s reliance System to Eliminate the Use of on privately operated criminal detention Privately Operated Criminal facilities. Detention Facilities 14007 Committees; Establishment, 1/27/2021 Establishes the President's Council of Advisors Renewal, Termination, etc.: on Science and Technology (PCAST) to advise President's Council of Advisors on the President on matters involving policy Science and Technology; affecting science, technology, and innovation. Establishment 14008 Tackling Climate Crisis at Home and 1/27/2021 Makes climate considerations an essential Abroad element of United States foreign policy and national security. 14009 Strengthening Medicaid and The 1/28/2021 Protects and strengthens Medicaid and the Affordable Care Act ACA and to make high-quality healthcare accessible and affordable for every American. 14010 Creating A Comprehensive Regional 2/2/2021 Establishes a comprehensive strategy for Framework to Address the Causes addressing the causes of migration in specific of Migration, To Manage Migration regions; and increase opportunities for Throughout North and Central vulnerable populations to apply for protection America, and to Provide Safe and closer to home, and the United States will Orderly Processing of Asylum enhance lawful pathways for migration to the Seekers at the United States Border United States and restore and strengthen the asylum system. 14011 Establishment of Interagency Task 2/2/2021 Ensures that children entering the United Force on the Reunification of States are not separated from their families, Families except in the most extreme circumstances. 14012 Restoring Faith in Our Legal 2/2/2021 Orders the Domestic Policy Council shall Immigration Systems and coordinate the Federal Government’s efforts Strengthening Integration an to welcome and support immigrants, including Inclusion Efforts for New Americans refugees, and to catalyze State and local integration and inclusion efforts. 14013 Rebuilding and Enhancing Programs 2/4/2021 Expands United States Refugee Admissions to Resettle Refugees and Planning Program and rescinds prior administration’s for the Impact of Climate Change refugee admissions policies. on Migration

Executive Title Issue Date Explanation Orders 14014 Blocking Property with Respect to 2/10/2021 Property and any interest in property in the the Situation in Burma United States may not be transferred, paid, exported, withdrawn, or otherwise dealt to operate in the defense sector of the Burmese economy or any other sector of the Burmese economy as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State. 14015 Establishment of the White House 2/14/2021 Assist in organizing more effective efforts to Office of Faith-Based and serve people in need across the country and Neighborhood Partnerships around the world, in partnership with civil society, including faith-based and secular organizations; to develop, lead, and coordinate the Administration’s policy agenda affecting faith-based and other community programs and initiatives and to optimize the role of such efforts in communities. 14016 Revocation of Executive Order 2/17/2021 Revocation of EO 13801 - The policy of the 13801 (Expanding Apprenticeships Federal Government to provide more in America) affordable pathways to secure, high-paying jobs by promoting apprenticeships and effective workforce development programs, while easing the regulatory burden on such programs and reducing or eliminating taxpayer support for ineffective workforce development programs. 14017 America’s Supply Chains 2/24/2021 Close cooperation on resilient supply chains with allies and partners who share the United States values will foster collective economic and national security and strengthen the capacity to respond to international disasters and emergencies. 14018 Revocation of Certain Presidential 2/24/2021 Revocation of Presidential Actions. The Actions following Presidential actions are revoked: Executive Order 13772 of February 3, 2017 (Core Principles for Regulating the United States Financial System), Executive Order 13828 of April 10, 2018 (Reducing Poverty in America by Promoting Opportunity and Economic Mobility), Executive Order 13924 of May 19, 2020 (Regulatory Relief to Support Economic Recovery), Executive Order 13967 of December 18, 2020 (Promoting Beautiful Federal Civic Architecture), and Executive Order 13979 of January 18, 2021 (Ensuring Democratic Accountability in Agency Rulemaking).

Executive Title Issue Date Explanation Orders 14019 Promoting Access to Voting 3/7/2021 Directs federal executive departments and agencies to partner state, local, Tribal, and territorial election officials to protect and promote the exercise of the right to vote, eliminate discrimination and other barriers to voting, and expand access to voter registration and accurate election information. 14020 3/8/2021 Establishes a White House Gender Policy Establishment of the White House Council to coordinate with federal government Gender Policy Council efforts to advance gender equity and equality. 14021 3/8/2021 States that policy of Administration that all Guaranteeing an Educational students should be guaranteed as educational Environment Free from environment from discrimination on basis of Discrimination on the Basis of Sex, sex, including in the form of sexual Including Sexual Orientation or harassment, which encompasses sexual Gender Identity violence and including discrimination on the basis of sexual orientation and directs the Secretary of Education in consultation with the Attorney General to review all existing regulations, orders, guidance documents, policies and any other similar agency actions and issue, suspended, revisit, rescind any rules inconsistent with this policy.

SUMMARY OF MEMORANDA AND PROCLAMATIONS ISSUED BY PRESIDENT BIDEN Rev. March 10, 2021

Executive Title Issue Date Explanation Actions Memo Modernizing Regulatory 1/20/2021 Reverses prior administration regulatory will Review review of processes that oversee regulatory reviews to ensure quick and effective Federal action. Memo Regulatory Freeze Pending 1/20/2021 Orders all agency heads to cease work on Review pending regulations, guidance, and opinion letters, to withdraw all such materials not yet published, and to freeze regulations published but not yet effective. Memo Preserving and Fortifying 1/20/2021 Reaffirms that undocumented immigrants who Deferred Action for Childhood were brought to the United States as children Arrivals (DACA) should not be removed (DACA). Memo Reinstating Deferred Enforced 1/20/2021 Blocks deportation of Liberian refugees living in Departure for Liberians the United States and reinstated deferment of their departure. Memo Extend Federal Support to 1/21/2021 Directs Secretaries of Defense and Homeland Governors' Use of the National Security to support state governors’ deployment Guard to Respond to COVID-19 of National Guard to prevent spread of COVID-19 and to Increase and will fully fund by FEMA. Reimbursement and Other Assistance Provided to States Memo Tribal Consultation and 1/26/2021 Recommits federal agencies to “engage in Strengthening Nation-to- regular, robust and meaningful consultation with Nation Relationships Tribal governments”. Memo Condemning and Combating 1/26/2021 Acknowledges rise in discrimination against Asian Racism, Xenophobia, and Americans and Pacific Islanders due to COVID-19; Intolerance Against Asian directs HHS to consider issuing guidance to Americans and Pacific Islanders improve “cultural competency, language access in the United States and sensitivity towards AAPIs in federal government’s COVID-19 response. Memo Redressing Our Nation's and 1/26/2021 Directs HUD to review prior administration’s the Federal Government's regulatory actions for effects on fair housing and History of Discriminatory take steps necessary to comply with Fair Housing Housing Practices and Policies Act. Memo Restoring Trust in Government 1/27/2021 Charges the Director of the Science and Through Scientific Integrity and Technology Policy office with the responsibility Evidence-Based Policymaking for ensuring scientific integrity across federal agencies.

Executive Title Issue Date Explanation Actions Memo Memorandum on Protecting 1/28/2021 Rescinds “Mexico City Policy” which bans U.S. Women’s Health at Home and government funding for foreign nonprofits that Abroad performs or promotes abortions. Memo Maximizing Assistance from 2/2/2021 With the assistance of FEMA, the Administration the Federal Emergency will work to protect to and support families, Management Agency to schools, and businesses, and to assist State, local, Respond to COVID–19 Tribal, and territorial governments to do the same. Memo Advancing the Human Rights of 2/4/2021 Directs relevant agencies to ensure LGBTQ+ Lesbian, Gay, Bisexual, refugees and asylum seekers to have equal access Transgender, Queer and to protections, to respond quickly to Intersex Persons Around the international LGBTQ+ human rights abuses and to World report annually to Congress on LGBTQ+ abuses and to rescind inconsistent prior administration policies within 100 days. PROCLAMATIONS Proclamation – National Day of 1/20/2021 President Biden proclaimed January 20, 2021 Unity National Day of Unity. 10141 Proclamation – Ending 1/20/2021 Reverses prior administration’s restrictions on Discriminatory Bans on Entry to United States entry for passport holders from 7 the United States Muslim-majority countries. 10142 Proclamation – Termination of 1/20/2021 Halts construction on the border wall by Emergency with Respect to the terminating National Emergency declaration used Southern Border of the United to fund it. States and Redirection of Funds Diverted to Border Wall Construction 10143 Proclamation – The Suspension 1/25/2021 Reinstates COVID-19 travel bans for individuals of Entry as Immigrants and traveling to United States from Brazil, the Non-Immigrants of Certain Schengen area of Europe, the UK, Ireland and Additional Persons Who Pose a South African. Risk of Transmitting Coronavirus Disease 2019 10144 Proclamation - Adjusting 2/1/2021 Due to national security interests at this time, it is Imports of Aluminum into the appropriate to maintain, at this time, the tariff United States treatment applied to aluminum article imports from the United Arab Emirates (UAE) under Proclamation 9704, as amended, as they are currently in effect. Accordingly, and as provided for in clause (6) of Proclamation 10139, President Biden terminated the modifications contained in that proclamation before they take effect. 10145 Proclamation - American Heart 2/3/2021 Commitment to fighting heart disease by Month, 2021 promoting better health, wellness, and prevention awareness in communities.

Executive Title Issue Date Explanation Actions 10146 Proclamation - National Black 2/3/2021 Call on the American people to honor the history History Month, 2021 and achievements of Black Americans and to reflect on the centuries of struggle that have brought attention to this time of reckoning, redemption, and hope. 10147 Proclamation - National Teen 2/3/2021 During National Teen Dating Violence Awareness Dating Violence Awareness and and Prevention Month (February), the Biden Prevention Month, 2021 Administration stands with those who have known the pain and isolation of an abusive relationship, and the Administration recommits to ending the cycle of teen dating violence that affects too many young people. 10148 Proclamation - Remembering 2/22/2021 A reflection on the loss of more than 500,000 the 500,000 Americans Lost to Americans lost to the COVID-19 pandemic. COVID-19 10149 Proclamation – Revocation of 2/24/2021 Revocation of Proclamation 10014 of April 22, proclamation 10014 2020 - Proclamation 10014 prevented Immigrants (Suspension of Entry of from entering the United States, resulting, in some Immigrants Who Present a Risk cases, in the delay and possible forfeiture of their to the United States Labor opportunity to receive Fiscal Year 2020 diversity Market During the Economic visas and to realize their dreams in the United Recovery Following the 2019 States. Novel Coronavirus Outbreak) 10150 Proclamation – American Red 3/1/2021 A recognition and celebration of the American Cross Month Red Cross and chance to honor all the Americans and Red Cross volunteers who have helped people in need. 10151 Proclamation – Irish-American 3/1/2021 The month of March will be a celebration of the Heritage Month sacrifices and contributions that generations of Irish Americans have made to build a better America, and the renewal of the bonds of friendship that will forever tie Ireland and the United States. 10152 Proclamation - National 3/1/2021 Colorectal cancer claims more than 50,000 Colorectal Cancer Awareness American lives, making it the second leading Month, 2021 cause of cancer deaths in the Nation. National Colorectal Cancer Awareness Month is a chance to bring greater attention to the disease. 10153 Proclamation – Women’s 3/1/2021 Women's History Month offers an important History Month 2021 opportunity to shine a light on the extraordinary legacy of trailblazing American women and girls who have built, shaped, and improved upon the Nation.

Executive Title Issue Date Explanation Actions 10154 Proclamation – National 3/1/2021 The Biden Administration will make it a priority to Consumer Protection Week ensure that companies providing digital 2021 communications products and other services honor consumer expectations regarding their privacy and their data. 10155 Proclamation – Read Across 3/1/2021 Read Across America Day, a celebration of the America Day, 2021 parents, educators, librarians, and other champions of reading who help launch our Nation's children on that critical path. Proclamation – National 3/1/2021 The Biden Administration will make it a priority to Consumer Protection Week ensure companies providing digital products and services honor consumer expectations regarding their privacy and their data. Women’s History Month 3/1/2021 The Biden Administration in Women’s History Month celebrate the contributions and progress of women and girls as well as their extraordinary and unequal burdens. OTHER PRESIDENTIAL ACTIONS Paris Climate Agreement 1/20/2021 United States accepts and rejoins Paris Climate Agreement. Letter to His Excellency 1/20/2021 United States rejoins the World Health António Guterres Organization, and Dr. Anthony Fauci is designated to lead the United States delegation. Continuation of the National 3/2/2021 The circumstances in Executive Order 13660,

Emergency With Respect to (issued March 6, 2014) and subsequent Executive Ukraine Orders issued with respect to Ukraine, have not improved, and continue to be an unusual and extraordinary threat to the national security and foreign policy of the United States. Therefore, the Biden Administration will continue for 1 year the national emergency declared in Executive Order 13660. Continuation of the National 3/2/2021 The circumstances in Executive Order 13692,

Emergency With Respect to (issued March 8, 2015) and subsequent Executive Venezuela Orders issued with respect to Venezuela, have not improved, and continue to be an unusual and extraordinary threat to the national security and foreign policy of the United States. Therefore, the Biden Administration will continue for 1 year the national emergency declared in Executive Order 13692.

Executive Title Issue Date Explanation Actions Continuation of the National 3/2/2021 The circumstances in Executive Order

Emergency With Respect to 13288,(issued March 6, 2003) and subsequent Zimbabwe Executive Orders issued with respect to Zimbabwe, have not improved, and continue to be an unusual and extraordinary threat to the national security and foreign policy of the United States. Therefore, the Biden Administration will continue for 1 year the national emergency declared in Executive Order 13288.