Second Day Sees Focus on COVID-19 Response: Employers Get Ready
January 22, 2021
By Jessica D. Osborne & Liani J. Reeves
On Day 2, President Biden continued to prioritize the coordination of a federal response to the COVID-19 pandemic, issuing a number of executive actions that include directing federal agencies to provide additional guidance on opening schools and enforcing safety measures in the workplace, imposing mask requirements on public transportation and in airports, requiring international travelers to show a negative COVID-19 test before flying to the United States and addressing equity and disparity issues related to the pandemic. Common themes include prioritizing public health and safety, requiring consultation with relevant labor unions as interested parties, focusing on equity, and using all parts of the Federal government from the Department of Labor to the Federal Communications Commission to coordinate a national and unified response. Here is a summary of the key actions taken yesterday as they may relate to employers.
Executive Order on Protecting Worker Health and Safety
Most significant to employers in all sectors, President Biden signed an Executive Order (“EO” or “Order”) authorizing and ordering swift action to reduce the risk of exposure to employees, which we anticipate will lead to new safety measures required in workplaces in the near future and an increased focus on enforcement.
The EO requires the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health to take several actions to reduce the risk that workers may contract COVID-19 in the workplace, including:
- Issue revised guidance on workplace safety concerning COVID-19;
- determine if additional emergency standards on COVID-19 are necessary;
- review and recommend any changes to enforcement efforts to protect workers and ensure equity;
- launch a national effort to focus enforcement efforts related to COVID-19 “on violations that put the largest number of workers at serious risk or [that] are contrary to anti-retaliation principles”; and
- coordinate with national Occupational Safety and Health Administration (“OSHA”) offices to conduct multilingual outreach efforts to educate employees and the representatives of their rights under applicable laws, including engagement with unions, community groups, and industry groups.
The EO also requires the Secretary and Assistant Secretary to work with the states to review and ensure workers’ adequate protection and revise guidance and standards as required with local OSHA agencies, governmental entities, and public employee unions. Additionally, the Secretaries of Agriculture, Labor, Health and Human Services, Transportation, and Energy are ordered to consult with all agency heads of appropriate agencies to explore all available “mechanisms to protect workers not protected under the Act[.]”
Takeaways for Employers:
We expect this Order will lead to a specific COVID-19 standard for workplaces. (Note: Oregon has developed its own emergency COVID-19 safety standard for the workplace. See Oregon OSHA’s temporary rule addressing COVID-19 workplace risks here.) Currently, OSHA enforcement of COVID-19 related safety issues in the workplace largely relies on the General Duty Clause, which requires employers to furnish employees a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.” OSHA has statutory authority to issue a General Duty Clause citation when no specific standard applies.
It is also likely that employers will see increased enforcement efforts. During the campaign, President Biden called for the number of federal OSHA inspectors to be doubled and for OSHA to aggressively enforce job safety and health regulations.
Employers should stay apprised of all prevention requirements in their workspace (such as the use of plexiglass, social distancing, availability of PPE, and masking) and implement all needed changes. Additional training for staff and supervisors should reinforce the need to comply with personal prevention measures (such as masking, maintaining appropriate distances, sanitization practices, and handwashing).
Executive Order on Establishing the COVID-19 Pandemic Testing Board and Ensuring a Sustainable Public Health Workforce for COVID-19 and Other Biological Threats
Through another EO, the President established a national COVID-19 testing and public health workplace strategy, including expanding the public health workforce.
The newly established COVID-19 Pandemic Testing Board will oversee the implementation of a national and unified approach to COVID-19 testing, with a focus on increasing access to healthcare workers and other essential workers, along with at-risk settings (such as correctional facilities, detention centers, child care settings, and food processing and manufacturing facilities), and high-risk groups (such as people experiencing houselessness, migrants, and seasonal workers).
The EO will also establish a public health workforce program, directing federal agencies to work with state, local, Tribal, and territorial leaders to understand the challenges they face in pandemic response efforts, including challenges recruiting and training sufficient personnel to ensure adequate and equitable community-based testing, and testing in schools and high-risk settings. Measures will include assisting in public health workers’ training and developing a plan detailing five-year targets and budget requirements for achieving a sustainable public health workforce.
The EO also authorizes the creation of the U.S. Public Health Job Corps, which will be implemented to initiate a national contact tracing program, assist in outreach to national vaccination efforts (including administration of vaccine clinics), and assist with training programs for state, local, Tribal, and territorial governments for provision of testing. The U.S. Public Health Job Corps will become part of FEMA, with the intention of long-term inclusion in the National Civilian Community Corps program.
Takeaways for Employers: Public health employers and employers in at-risk settings such as correctional and detention facilities should note that a national strategy is coming. As the various strategies and plans are being developed, it will be important to be part of the consultation, especially around recruiting and training public health workers, which have labor implications.
Executive Order on Promoting COVID-19 Safety in Domestic and International Travel
While many transportation providers and state and local governments have already implemented mask policies, President Biden issued an EO that will require masks to be worn in various contexts to protect Americans from the spread of the COVID-19 virus, including the millions of people employed in the transportation industry. The EO outlines the Administration’s policy to implement public health measures consistent with CDC guidelines on public transportation modes and at ports of entry to the United States.
The EO directs relevant federal agencies to immediately take action, to the extent appropriate and consistent with applicable law, to require masks to be worn in compliance with CDC guidelines in or on: airports; commercial aircraft; trains; public maritime vessels, including ferries; intercity bus services; and other forms of public transportation defined as “continuing shared-ride surface transportation services that are open to the general public or open to a segment of the general public defined by age, disability, or low income.” Excluded from the definition of “public transportation” are charter bus services, school bus services, sightseeing services, courtesy shuttles for patrons, and intra-facility shuttle services.
It also requires the Secretary of Transportation (including through the Administrator of the FAA) and the Secretary of Homeland Security (including through the Administrator of the TSA and the Commandant of the Coast Guard), in consultation with the Director of CDC, to promptly provide recommendations concerning how their respective agencies may impose additional public health measures for domestic travel. The EO also requires Federal agencies to look at ways to incentivize, support, and encourage widespread mask-wearing and physical distancing on public modes of transportation.
Implementation of the Order’s mask requirements and additional public health measures requires consultation with interested parties, including state, local, territorial, and Tribal governments, consumer representatives, and industry and union representatives from the transportation sector.
Another part of the EO relates to international travel. It sets out the Administration’s policy that, to the extent feasible, travelers seeking to enter the United States from a foreign country shall be required to produce proof of a recent negative COVID-19 test prior to entry; and required to comply with other applicable CDC guidelines concerning international travel, including recommended periods of self-quarantine or self-isolation after entry into the United States. It outlines expectations for developing recommendations and specific plans for air, land, and sea travel. The EO also directs federal agencies, in coordination with any relevant international organizations, to assess the feasibility of linking COVID-19 vaccination to International Certificates of Vaccination or Prophylaxis (ICVP) and producing electronic versions of ICVPs.
Takeaways for Employers:
Employers in the transportation industry should note that a federally imposed mask requirement will soon be implemented, and additional measures are likely to follow. The EO provides cover to those workers in the transportation industry – such as flight attendants and bus drivers – who have been trying to enforce company mask policies, sometimes met with defiant customers’ resistance. More than 30 transportation unions filed a petition with the Department of Transportation last year calling for masks to be mandatory on all commercial transportation but the prior administration declined to issue a federal mandate.
Employers will still be required to comply with the Americans with Disabilities Act and accommodate employees that may have disability-related reasons that prevent them from wearing a mask. However, modifications in the form of reasonable accommodations should be explored, such as alternate face coverings like face shields, work from home, or moving work stations and other social distancing measures.
In addition, employers who have employees engaging in work-related or personal travel or employees arriving from overseas should be aware of the restrictions that will likely be put in place related to international travel. Employers may need to modify policies to ensure employees are compliant with the travel-related requirements and will need work through considerations like alternate work arrangements for employees who are in periods of self-quarantine or self-isolation and leave time and pay for employees who are unable to work.
Executive Order on Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers
Recognizing that every student in America deserves a high-quality education in a safe environment and acknowledging the hardships caused by the COVID-19 pandemic, the President outlined the policy of his Administration to provide support to help create the conditions for safe, in-person learning as quickly as possible; ensure high-quality instruction and the delivery of essential services often received by students and young children at school, institutions of higher education, child care providers, and Head Start programs; mitigate learning loss caused by the pandemic, and address educational disparities and inequities that the pandemic has created and exacerbated.
The EO outlines agency roles and responsibilities in fulfilling the goals in the Order:
- The Secretary of Education, in consultation with the Secretary of Health and Human Services, is tasked with providing evidence-based guidance to assist states and elementary and secondary schools and institutions of higher education on opening for in-person learning; and to provide advice regarding distance and online learning, blended learning, along with “the promotion of mental health, social-emotional well-being, and communication with parents and families.” The Order also directs the Secretary of Education to develop a clearinghouse to enable schools and higher education institutions to share lessons learned and best practices for operating safetly during the pandemic. Outlining specific directions with respect to disparate impacts, the Order directs the Department of Education’s Assistant Secretary for Civil Rights to deliver a report as soon as practicable on the disparate impacts of COVID-19 on students in elementary, secondary, and higher education, including those attending historically black colleges and universities, Tribal colleges and universities, Hispanic-serving institutions, and other minority-serving institutions; and provides for consultation with “those who have been struggling for months with the enormous challenges the COVID-19 pandemic poses for education, including students; educators; unions; families; state, local, Tribal, and territorial officials; and members of civil rights and disability rights organizations” in carrying out the directives in the Order.
- The Secretary of Health and Human Services is directed to facilitate the collection of data needed to inform the safe reopening and continued operation of elementary and secondary schools, child care providers, and Head Start programs; to ensure that such data are readily available to state, local, Tribal, and territorial leaders and the public, consistent with privacy interests, and provides that such data be disaggregated by race, ethnicity, and other factors as appropriate. The Secretary of Health and Human Services will also ensure that COVID-19 related supplies are equitably allocated to support in-person care and learning and support the development and operation of contact tracing programs.
- The Secretary of Education and the Secretary of Health and Human Services are jointly tasked with submitting a report identifying strategies to address the impact of COVID-19 on educational outcomes, especially along racial and socioeconomic lines. In so doing, the Secretaries shall consult with such officials in state, local, Tribal and territorial governments, as well as with education experts; educators; unions; civil rights advocates; Tribal education experts; public health experts; child development experts; early educators, including child care providers; Head Start staff; school technology practitioners; foundations; families; students; community advocates; and others.
- The EO also encourages the Federal Communications Commission to increase connectivity options for students lacking reliable home broadband to assist students if schools are operating remotely.
Takeaways for Employers:
The EO provides a pathway towards the reopening and continuing operation of schools, but the direct impacts and implications for education employers are still to be determined. Undoubtedly, there is increasing pressure on schools, early childhood education providers, and other educational institutions to reopen, and the federal government has made that a priority. As more specific plans are developed, our educational institutions will be tasked with a huge responsibility to provide a safe learning environment for students and a safe working environment for their employees.
Executive Order on Ensuring an Equitable Pandemic Response and Recovery
Staying consistent with the President’s stated commitment to addressing systemic barriers to equity, in another EO issued yesterday, the Biden Administration acknowledged the inequitable impact of the pandemic to historically marginalized communities, stating “people of color experience systemic and structural racism in many facets of our society and are more likely to become sick and die from COVID-19.” This EO seeks to address gaps in equitable access to the Pandemic response for communities of color and other underserved populations.
To meet the stated policy, the EO established a Health Equity Task Force, which will include the Secretary of Health and Human Services, other senior-level officials of the Federal Government, non-senior Federal employee(s); and nonfederal representatives with expertise and lived experience suffering disproportionate impacts in areas relevant to public health, health care, education, housing, and community-based services. The task force’s stated mission is to work to disaggregate data in relation to the pandemic and provide recommendations to the President on how to continue to improve data collection.
The EO also orders that the heads of all agencies with any authority or responsibility to provide pandemic response shall assess current response plans and policies to determine if equipment, testing, vaccines, or other resources have been or will be allocated equitably, considering factors related to the higher rates and mortalities of specific communities, along with any barriers that restrict access to preventative measures, treatments or other health services for higher-risk populations. All agencies are further ordered to modify pandemic response plans and policies to advance equity based on the effects of any changes to the distribution of resources, data collection, priorities of specific communities, and strengthening of enforcement of anti-discrimination requirements. Further, the agencies shall partner with states, localities, Tribes, and territories to provide greater assistance to individuals and families experiencing disproportionate economic or health effects from COVID-19.
Takeaways for Employers:
Although the EO does not have specific implications for employers, given the scope of the EO, all Federal agencies that regulate aspects of the employment relationship, such as the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Occupational Health and Safety Administration, must take part in these reviews which will include a review of health and economic effects from COVID-19. This will likely lead to an assessment of whether there are racial disparities in employers’ health and safety efforts and whether pandemic-related employment actions (layoffs, reductions in force, interpretation of “undue hardship” which leads to employees’ loss of jobs, access to benefits and leave, etc.) disproportionately affect communities of color or other underserved populations. Employers can anticipate increased scrutiny and potential federal and private enforcement actions in this regard.
Bullard Law will continue to monitor the implementation of the various Orders and provide updates.
We also invite you to save the date for Bullard’s webinar that will discuss how the new Administration will impact employers on February 18, 2021, at 10 am. More details to follow.
The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.
Fortunately, some states like Oregon have taken measures to help provide additional protections for schools trying to operate during the pandemic. House Bill 4402 (2020) establishes an immunity against claims for damages against schools related to COVID-19 infections suffered as a result of acts or omissions performed by a school in the course of operating an education program (on or off school property) and when the school is operating in compliance with “COVID-19 emergency rules” in effect at the time of the act or omission (see B-Alert here).
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