Articles Posted by Insights

The Biden Administration has made it clear that it intends to reverse many of the Trump Administration’s regulatory initiatives.  During his campaign Biden touted himself as a champion of labor, and his administration’s actions immediately after assuming power suggest that he intends to keep this campaign promise.  This article summarizes some of the actions already taken and those contemplated by the new administration.

EXECUTIVE ORDERS.  In his first week in office the Biden Administration signed 22 Executive Orders (EO’s), significantly more than his predecessors, and shows no signs of slowing the pace down.   Some of those affecting employers are discussed below.

Freeze on Proposed and Pending Regulations.  President Biden’s first EO called for an immediate withdrawal of administrative agency rules not yet published in Federal Register so they can be reviewed and approved by the new administration.  The Administration also asked federal agencies to consider postponing the effective date of pending rules published in Federal Register for 60 days and opening a 30 public comment period.

In our December 11, 2020 publication found here, we explored the ability of employers to mandate COVID-19 vaccinations in the workplace. In short, in the absence of federal or state laws to the contrary, employers are free to mandate vaccinations.

On December 16, 2020 the EEOC issued guidance that paved the way for employers to mandate vaccinations without fear of violating the Americans with Disabilities Act (the “ADA”), Title VII and other federal law.  The provisions of the new guidance are outlined below.

Vaccinations are not “medical examinations” under the ADA.

Federal and State law require nonexempt employees to be paid time and one half their regular hourly wage for hours worked in excess of 40 hours in any given workweek.  Overtime is calculated based on an employee’s regular hourly wage.[1] Assuming there is no contract or other obligation imposed by Federal or State law, there is no requirement that a nonexempt employee be paid premium overtime compensation for hours worked in excess of eight hours per day, nor for work on Saturdays, Sundays, or holidays, other than the requirement of overtime for over 40 hours per week.

Who Qualifies as a Nonexempt Employee Eligible for Overtime Pay?

Not all employees qualify for overtime pay.  Generally, individuals employed in bona fide executive, administrative, or professional capacities are exempt from Federal and State overtime requirements under the so-called “white collar” exemptions.  Qualification for exemption is not determined solely by an employee’s title, job description or the fact that the employee is paid on a salary as opposed to hourly basis.  Rather, to qualify for this exemption, the employer must show that the employee satisfies both a “salary basis” test and a “duties” test.  Because the burden is on the employer to demonstrate that the exemption applies, it is critical that employers conduct a thoughtful and careful analysis when classifying an employee as exempt.

In response to the pandemic, Congress passed the Families First Coronavirus Response Act (the “FFCRA”) that provided up to 10 days of emergency paid sick leave for COVID-related absences and up to 12 weeks emergency paid family leave to care for a child in the event of a COVID-related school or daycare closure.  These benefits went into effect in April 2020 and will terminate on December 31, 2020.

Many speculated that Congress would extend the FFCRA benefits to provide continued relief to individuals and families still grappling with work-related absences caused by the ongoing pandemic.   Cases have spiked in many areas and schools continue to provide remote learning.  Although the Consolidated Appropriations Act (the “Act”) signed by President Trump earlier this week provides various pandemic relief programs, the Act did not extend the expiration date of the FFCRA.

The Consolidated Appropriations Act’s extension of FFCRA Tax Credits for Employers.

As the pandemic enters its tenth month, employers have had to adjust to significant interruptions to the workplace and the new mandates under the Families First Coronavirus Response Act and other state law protection to individuals and families impacted by the virus.   Now that several pharmaceutical companies are about to rollout COVID-19 vaccines, employers are facing a new dilemma – whether private employers can mandate employees get vaccinated and, if so, should they do so?

Although it is questionable whether the federal government has the authority to mandate vaccines, President Elect Joe Biden has stated that he does not intend to make vaccinations mandatory, preferring to implement programs to encourage voluntary vaccinations.   Dr. Anthony Fauci has likewise expressed his objection to compulsory mandates.   On the other hand, mandatory vaccinations can be imposed on the state level but to date states have not expressed a firm intention to go this route.   As with influenza, the CDC recommends individuals get the COVID-19 vaccination when it becomes available, especially healthcare workers, but does not issue any mandates to the healthcare systems.

According to the Pew Research Center, four out of ten Americans indicate that they would likely not opt for vaccination due to concerns over the unprecedented speed of the vaccine’s development and its untested long term safety record.

In the face of mounting COVID-19 infection rates throughout the country, on December 4, 2020 the CDC issued a recommendation for the universal use of facemasks in indoor spaces as well as outdoor spaces when 6 feet of social distancing cannot be maintained.   In addition, the CDC recommends the wearing of facemasks within households when a member of the household has been infected or had a potential exposure to the virus.   The CDC noted that the proper use of facemasks is critical to reducing the spread of the virus “particularly in light of estimates that approximately one half of new infections are transmitted by persons who have no symptoms.”

The CDC also urges that exposures to “nonessential indoor settings and crowded outdoor settings pose a preventable risk to all participants” and urges continued prevention strategies such as take away service, outdoor dining and gatherings, if social distancing can be maintained, and the continued promotion of teleworking and other flexible work arrangements.

The CDC observed that increased testing, diagnosis and isolation should be implemented to interrupt the “silent transmission” of the virus from asymptomatic and pre-symptomatic persons, as well as case investigation and contract tracing to identify, quarantine and test close contacts.