Insights

On Inauguration Day, President Trump issued a flurry of executive orders.  Among the first he signed was the Initial Rescissions Of Harmful Executive Orders and Actions Executive Order (the “Rescinding EO”). This directive rescinded 78 executive orders issued by the Biden Administration.  The revocation of one in particular, Executive Order 14055 of November 18, 2021 Non-displacement of Qualified Workers Under Service Contracts (the “EO 14055”), will have an immediate impact on federal contractors performing and bidding on Service Contracts.

On June 24, 2024, the U.S. District Court for the Northern District of Texas issued a nationwide preliminary injunction, stopping the U.S. Department of Labor (“DOL”) from enforcing three key elements of regulations related to the Davis-Bacon Act and Related Acts (“DBA” or “Act”).  The court order issued in Associated General Contractors v. U.S. Department of Labor will provide significant comfort and certainty to contractors that perform work on federally funded construction projects.

On February 8, 2024, the Supreme Court decided Murray v. UBS Securities, LLC, No. 22-660, holding that a whistleblower must prove that his or her protected activity was a contributing factor in the unfavorable personnel action but does not need to prove that his or her employer acted with “retaliatory intent.”

On December 14, 2023, the Department of Labor (“DoL”) issued a final rule implementing Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts” (the “Rule”). The Rule requires contractors to give service employees from a predecessor contract a bona fide right of first refusal for employment under new Service Contract Act (“SCA”)-covered contracts, contract-like instruments, or subcontracts for the same or similar work. These bona fide offers to service employees—as defined by the SCA—must be made before the contractor makes offers to other workers. The Rule will go into effect on February 12, 2024.

On August 23, 2023, the U.S. Department of Labor (“DOL”) issued a final rule updating regulations governing federally funded construction projects subject to the Davis-Bacon Act and Related Acts (“DBA”). The final rule is the first significant regulatory update to the DBA since 1982.  Among other things, the final rule changes how DOL will calculate the applicable prevailing wage for any given classification of workers on a DBA-covered contract when the default “majority” prevailing wage calculation is not possible; in particular it supplants the current “weighted average” calculation approach with the “30-percent rule.” The revised rule will go into effect on October 23, 2023 – 60 days after it was published in the Federal Register.

The EEOC has provided updated COVID-19 guidance on workplace vaccine issues. Significantly, the EEOC’s latest guidance addresses questions about religious objections to employer COVID-19 vaccine requirements and how they interact with equal opportunity employment laws such as Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII requires an employer to provide reasonable accommodations to employees who do not submit to COVID-19 vaccination because of a “sincerely held religious belief, practice, or observance,” including nontraditional religious beliefs, unless doing so would pose an undue hardship on the operation of the employer’s business. But Title VII does not protect “social, political or personal preferences” or “nonreligious concerns about the possible effects of the vaccine.” As we previously reported, the EEOC had updated its Technical Assistance Q & A earlier in the year regarding what employers should know about COVID-19, the Americans with Disabilities Act (the “ADA”) and other federal EEO laws to address questions concerning vaccination and the workplace. Among other things, the updated guidance states that employees and applicants must inform the employer if they are requesting an exemption to a COVID-19 vaccination requirement due to a conflict with their sincerely held religious beliefs, practices or observances. Further, the same principles apply if they assert a religious conflict with getting a particular vaccine and desire to wait until an alternative version or specific brand of COVID-19 vaccine is available. Employees and applicants do not need to use specific language, or any “magic words,” when making such a request.

New York Governor Kathy Hochul announced on September 6, 2021, that the New York State Commissioner of Health has designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the New York State Health and Essential Rights Act (“HERO Act”).  Most employers in New York State must now promptly implement their airborne infectious disease exposure prevention plan (“Plan”) to ensure compliance. The New York State Department of Labor, as provided in the NY HERO Act Exposure Prevention Standard, has taken the position that employees and employers within the coverage of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Healthcare Emergency Temporary Standard are not covered by these HERO Act mandates.

President Biden yesterday afternoon announced a comprehensive, six-part strategy to combat COVID-19, aimed largely at vaccinating the 25% of the eligible population who remain unvaccinated. The first part of his plan has numerous implications for private sector employers across all industries. 

While the Delta variant of COVID-19 spreads throughout the United States, government agencies continue to modify their guidance regarding COVID-19 protections. On Friday, August 13, the Occupational Safety and Health Administration (“OSHA”) updated its “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which applies to employers other than those covered by the OSHA Emergency Temporary Standard for healthcare workers. (We previously wrote about the June 10 iteration of this guidance here). The latest version of the guidance is intended in part to reflect the CDC’s July 27, 2021 recommendations for fully vaccinated individuals, including that those individuals should wear masks at all times indoors in places of substantial or high community transmission.

The New York State Department of Labor (“DOL”) published important guidance regarding the New York Health and Essential Rights Act (the “HERO Act”) on July 6, 2021.  Specifically, the DOL issued an Airborne Infectious Disease Exposure Prevention Standard and a Model Airborne Infectious Disease Exposure Prevention Plan as well as eleven industry-specific model prevention plans  in the following industries: Agriculture; Construction; Delivery Services; Domestic Workers; Emergency Response; Food Services; Manufacturing and Industry; Personal Services; Private Education; Private Transportation; and Retail. This publication imposes obligations on employers with work sites in New York State to adopt, but not yet implement, airborne infectious disease exposure prevention plans (“Plans”) by August 5, 2021.

On June 11, 2021, New York Governor Andrew Cuomo signed S06768 (Amendments), amending the New York State Health and Essential Rights Act (HERO Act), into law.  Crowell & Moring previously addressed the HERO Act, which permanently codified COVID-19-related health and safety protocols, here.  The Amendments modify and clarify several important aspects of the HERO Act, including but not limited to the definitions of “work site” and “employee,” the implementation of the model airborne infectious disease exposure prevention standards (Model Standards) and employers’ own airborne infectious disease exposure prevention plans (Plans), limiting employees’ private right of action, and narrowing the scope of authority of joint labor-management workplace safety committees to be established by November 1, 2021.  The Amendments also provide the New York Department of Labor (NYDOL) until July 5, 2021 to publish the Model Standards.  Also, in response to the State’s achievement of reaching the seventy percent vaccination rate of adults, effective June 15, 2021, Governor Cuomo announced that most of the State’s remaining COVID-19 restrictions are lifted, except for the mask requirement for unvaccinated individuals and in certain settings (e.g., large-scale indoor event venues, pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes and health care settings per CDC guidance). 

On Friday May 28, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Q&A regarding what employers should know about COVID-19, the Americans with Disabilities Act (the “ADA”) and other EEO laws to address questions specific to vaccinations and the workplace.  Friday’s update marks the first time the EEOC has issued additional clarification since the first COVID-19 vaccine was approved for Emergency Use Authorization in December 2020.  Significantly, this guidance makes clear that employers may, in general, require employees who physically enter the workplace to be vaccinated for COVID-19 as long as the employer provides reasonable accommodations under the ADA and Title VII for employees who cannot be vaccinated because of a disability or a sincerely held religious belief, respectively—provided such accommodations do not pose an undue hardship on the business.

On May 5, 2021, New York Governor Andrew Cuomo signed S1034, the New York State Health and Essential Rights Act (HERO Act), into law.  The HERO Act, described by the Governor’s Office as a “first-in-the-nation” law, requires the New York State Commissioner of Labor (NYDOL), in consultation with the New York State Commissioner of Health (NYDOH), to issue airborne infectious disease exposure standards for all work sites, in English and in Spanish.  These standards, covering not only employees but also independent contractors, must be differentiated by industries and must address several subject areas, including employee health screenings, face coverings, personal protective equipment (PPE), effective social distancing, and cleaning and disinfecting protocols.  All employers are required to either implement the standard that is relevant to their industry and workforce, or to establish their own airborne infectious disease exposure prevention plans (Plans) that meet or exceed the requirements of the applicable NYDOL standard.  Effective November 1, 2021, the HERO Act requires employers with at least ten employees to permit their employees to create and participate in joint labor-management workplace safety committees meeting certain specified criteria.  The statute, otherwise effective June 4, 2021, establishes a private right of action for employees and imposes civil fines on employers who fail to comply.  Retaliation against covered employees for exercising rights under the HERO Act or the employer’s Plan, reporting violations, participating in workplace safety committees, and/or refusing to work based on their reasonable, good-faith belief that the working conditions create an unreasonable risk of exposure to airborne infectious diseases inconsistent with applicable law is strictly prohibited.

After 100 days in office, President Joe Biden has made it clear that he is not afraid to go it alone to pursue policy to match his campaign rhetoric and promises. The first 100 days of the administration were marked by a significant number of executive orders, a historic economic stimulus package passed with only Democratic support in Congress, and sweeping proposals that – if enacted – could transform everyday life for a significant number of Americans.

On January 19, 2021, the Eleventh Circuit affirmed a district court’s rejection at summary judgment of a disgruntled employee’s False Claims Act (FCA) retaliation claim in Hickman v. Spirit of Athens, No. 19-10945 (11th Cir. Jan. 19, 2021). The Court’s decision makes clear that, despite expansions to the FCA in 2009 and 2010 protecting employees who engage in “efforts to stop 1 or more violations” of the FCA, plaintiffs must nevertheless establish that they held an objectively reasonable belief that they were attempting to prevent the submission of false claims to the government for their conduct to constitute protected activity.

On January 29, 2021, the federal Occupational Safety and Health Administration (OSHA) released updated guidance on addressing COVID-19 in the workplace, Protecting Workers: Guidance on Mitigating the Spread of COVID-19 in the Workplace (Guidance). This guidance was directed by President Biden’s January 21 Executive Order on Protecting Worker Health and Safety. Although this Guidance is not itself an enforceable health and safety standard, that same Executive Order directed OSHA to “consider whether any emergency temporary standards on COVID-19” are necessary, and, if so, to promulgate any such emergency temporary standard (ETS) or standards by March 15, 2021. In fact, some states that operate their own occupational safety and health agencies (state OSH agencies), including California, Oregon, and Michigan, have already promulgated COVID-specific emergency standards of their own and, as discussed in this alert, Virginia has gone further in issuing a first-in-the-nation permanent standard. To date, OSHA has primarily relied on the General Duty Clause of the Occupational Safety and Health Act of 1970 to the extent it has pursued COVID-related enforcement, and against the backdrop of the noted state OSH agencies taking more aggressive regulatory and enforcement action to combat COVID-19 in the workplace, there has been significant political pressure, especially from congressional Democrats and labor groups, for OSHA to do more from the federal level.

In a recently published Law360 article, “How To Cope with Increased Whistleblower Complaints,” Preston Pugh, Trina Fairley Barlow, and Christine Hawes of Crowell & Moring discuss how the COVID-19 pandemic has generated many challenges for employers who have been struggling since early 2020 to continue operating, paying their employees, and addressing health and liability concerns in the face of government restrictions, reduced business, and safety risks. One such challenge has been a rise in whistleblower complaints and government investigations since March 2020. In the article, they provide answers to important questions that employers have about whistleblower investigations. 

On January 13, 2021, the Virginia Safety and Health Codes Board voted to approve a Final Permanent Standard (Final Standard) for preventing COVID-19. The Final Standard sets forth health and safety requirements related to COVID-19 for all Virginia employers and is expected become effective before January 27. The Final Standard largely adopts obligations already in place under the Emergency Temporary Standard (ETS) that Virginia adopted on July 15, 2020 but which expires on January 26, 2021. The Final Standard will be among the most comprehensive set of mandatory occupational health and safety regulatory standards focused on COVID-19 in the country and may serve as a benchmark for other states.

On August 3, 2020, President Donald Trump issued an Executive Order framed as “Aligning Federal Contracting and Hiring Practices With the Interests of American Workers.” The Order declares the “policy of the executive branch to create opportunities for United States workers to compete for jobs, including jobs created through Federal contracts,” and directs federal agencies to engage in two distinct reviews to assess how current practices align with that policy.

The new United States Mexico Canada Agreement (USMCA), which replaced the 1994 North American Free Trade Agreement (NAFTA), became effective on July 1, 2020. Historically, free trade agreements like the NAFTA have been criticized for their lack of strong labor provisions to address low wages and inadequate labor standards that advocates argue support worker rights and improve economic growth in developing countries. The USMCA seeks to address those concerns. In fact, as a precondition to the passage of the USMCA, the U.S. Congress reopened the negotiations at the end of 2019 and amended the agreement to bolster Mexican workers’ rights and to include stronger enforcement provisions like the Rapid Response Mechanism to hold companies in Mexico accountable for violating the rights of free association and collective bargaining.