From the day of inauguration, the Biden government has shown that strengthening worker protection is a clear priority. Recent measures aim to improve the health and safety protection for workers during the COVID-19 pandemic. The administration has also recognized the importance of eliminating racial and gender inequalities in the workplace. These recent Executive Orders (EOs), signed on the day of inauguration or shortly thereafter, are likely just the beginning of the administration’s expansion of worker protection.
Protecting the health and safety of workers
EO 13999, “Protection of the Health and Safety of Workers”, calls on the Minister of Labor to take immediate action to reduce the risk of workers contracting COVID-19 in the workplace. One section instructs the secretary to review the OSHA’s enforcement efforts to improve the agency’s practices. Federal OSHA, tasked with ensuring safe working conditions for workers, has endeavored to respond effectively to complaints from workers during the COVID-19 pandemic. By the end of January 2021, federal OSHA had received a total of over 13,000 COVID-related complaints, but only initiated an inspection of a small fraction of those complaints. Reviewing OSHA’s past enforcement efforts – including examining their shortcomings – is a critical step in protecting the health and safety of workers. For workers who are not protected by the Occupational Safety and Health Act, such as workers in industries such as mining, nuclear power and transport, through which other federal agencies regulate working conditions, the PO instructs the secretaries of various federal agencies to investigate mechanisms to ensure that these workers are involved in the Stay healthy and safe at work.
The PO also instructs the secretary to consider issuing temporary emergency standards in response to COVID-19. When issued, temporary emergency standards are mandatory and take effect immediately. In order to issue such a standard, OSHA must state that “Workers are at great risk because of their exposure. . . new threats and that an emergency standard is needed to protect them. “[1] Although federal OSHA has not yet issued such standards, states with state OSHA plans such as Virginia and California issued temporary emergency standards in 2020. (Virginia’s standard recently became the final standard effective Jan. 27, 2021.) Despite efforts to keep the Federal OSHA out of such a standard, including an emergency Mandamus petition in federal court,[2] The agency never did this under the previous administration. According to the PO, the secretary has until March 15, 2021 to determine whether temporary emergency standards are required and to issue them if necessary.
In addition, the PO instructs the secretary to revise the guidelines for employers regarding COVID-19. On January 29, 2021, OSHA issued stricter occupational safety guidelines. This guide recommends running a COVID-19 prevention program in the workplace that includes certain measures, such as:
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Identifying measures to limit the spread of the virus in the workplace, e.g. B. Installation of barriers, improvement of ventilation and use of face coverings;
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Training workers in a language they understand about COVID-19 policies and procedures;
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Ensuring that infected or potentially infected workers stay at home, for example by ensuring that absenteeism is not penalized; and
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Provide free vaccines to eligible employees.
Since this OSHA document is merely a guide, no new legal obligations arise, although employers have an existing obligation under the General Obligatory Clause of the Occupational Safety and Health Act to provide their employees with a workplace that is “free from identified hazards that can cause death or cause seriousness or likely to cause bodily harm. ”However, this guide is a step in the right direction and can serve as a template for future temporary emergency standards.
equal rights
EO 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation”, is intended to ensure that all guidelines, regulations and measures of the federal authority are in line with the administration’s goals of promoting gender equality. The EO adopts an expansive interpretation of gender equality that includes protective measures based on gender identity and sexual orientation. The EO cites the Boston Supreme Court ruling against Clayton County[3] The prohibition on sex discrimination in Title VII applies to discrimination based on sexual orientation and gender identity. The government expands Bostock’s reasoning to other laws that prohibit gender discrimination, including those related to education, health, and housing. The PO also recognizes how discrimination based on sex can overlap with other forms of discrimination such as race or disability. With this full understanding of gender equality, the PO instructs the Agencies to review any existing policies by the Agencies to ensure that they are compatible with this new framework.
Racial justice
EO 13985, “The Federal Government’s Promotion of Racial Justice and Support for Underserved Communities,” focuses on combating systemic racism and other forms of discrimination in federal politics and programs.
While this PO is not specific to employment issues, it directs all federal agencies to assess systemic barriers for underrepresented communities to receiving federal benefits or accessing federal programs. The “underrepresented communities” include “Blacks, Latinos, Indigenous and Native American people, Asian Americans and Pacific islanders, and other people of color; Members of religious minorities; Lesbian, gay, bisexual, transgender and queer (LGBTQ +); People with disabilities; People living in rural areas; and people otherwise affected by persistent poverty or inequality. “The Director of the Office of Administration and Budget (OMB) needs to identify federal funding allocation strategies and report to the President to invest more in underrepresented communities. The PO calls on the agencies to consult with members of affected communities to assess the barriers these communities face, and it is establishing a working group to oversee the collection of federal data on race, ethnicity, gender, Disability and other population groups to improve information.
This EO is not only important for its forward-looking measures, but also for previous executive orders that it revoked. In particular, the administration has revoked EO 13950, which prohibited government contractors from, among other things, providing on-the-job training on gender and racial inequalities. This particular section of the Trump EO was made mandatory by a California District Court order in December 2020.
While this PO is specifically focused on promoting racial justice, it is not the only indication that the new government is focusing on these issues. The above two EOs also recognize the overlap between racial justice and other issues such as gender equality and worker health and safety. In formulating these commands through a lens of racial justice, these EOs represent a significant shift in the goals of the federal government and propose broader changes to advance the racial justice that is yet to come.
Organizational and federal minimum wages
While EO 14003, Federal Workforce Protection, is restricted to federal employees, the administration clearly cites its support for union organization and bargaining, stating that “it is the policy of the United States to promote union organization and bargaining” and that the federal government “Should serve as a model employer”. This PO revoked a number of previous orders relating to union hours and collective agreements for federal employees. In particular, this EO also called on the director of the OMB to make recommendations to the president to promote a minimum wage of USD 15 per hour for federal employees.
What’s next
While some of these POs are designed to reverse various actions taken by the previous administration – by revoking various POs and reviewing the rules and regulations in place – other actions indicate that the administration has plans to expand, and not just, plan to protect workers to return to the current status quo before the last administration. These POs propose future actions to address systemic issues in federal laws and programs, particularly those related to racial inequalities. These orders are an important start for workers and those belonging to underrepresented communities, but legal provisions will be needed to help the vast majority of people who work for private employers.
[1] US Department of Labor, Occupational Safety and Health, OSHA Standards Development, https://www.osha.gov/laws-regs/standards-development.
[2] See In re: American Federation of Labor and Congress of Industrial Organizations, No. 20-1158 (DC Cir. June 11, 2020) (Rejection of the AFL-CIO’s Mandamus emergency petition seeking a temporary emergency standard with the Justification that OSHA had reasonably determined this was not necessary at this point in time).
[3] 140 S.Ct. 1731, 590, USA (2020).
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