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Biden Administration Issues Executive Orders Addressing Critical Workplace Issues

Upon taking office, President Biden and the new Presidential administration have promptly taken steps that impact employees and employers. President Biden has already issued several Executive Orders specifically intended to address discrimination and safety in the workplace.

Discrimination Based on Sexual Orientation and Gender Identity

The Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation prohibits federal agencies from discriminating against individuals identify as lesbian, gay, bisexual, or transgender (LGBT). Specifically, it directs all federal agencies to “review all orders, regulations, guidance documents, policies, programs, and agency actions promulgated or administered under Title VII or other laws or regulations that prohibit sex discrimination.” If any actions are found to be inconsistent with prohibiting discrimination based on gender identity or sexual orientation, agencies are directed to take appropriate steps to revise, suspend, or rescind such actions, or promulgate new agency actions, to prevent such discrimination. It also directs federal agencies to take “appropriate steps to combat, [sic] overlapping forms of discrimination, such as discrimination on the basis of race or disability.” It recognizes that “all persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” This comes in the wake of the landmark Supreme Court case, Bostock v. Clayton County, 140 S.Ct. 1731, 590 U.S. __ (2020) which extended existing Title VII protections to LGBT individuals.

Workplace Diversity Training

President Biden also issued Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, revoking and reversing President Trump’s previous controversial Executive Order 13950 with respect to combatting race and sex stereotyping. The previous Executive Order restricted the federal government, federal contractors, and federal grantees from providing antidiscrimination and diversity training that included any form of race or sex stereotyping, scapegoating, or divisive concepts.

President Biden’s Executive Order directs the federal government to “pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” It provides that “[a]ffirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government. Because advancing equity requires a systematic approach to embedding fairness in decision-making processes, executive departments and agencies (agencies) must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.”

The Executive Order also establishes an Interagency Working Group on Equitable Data (Data Working Group) which would allow the federal government to gather and measure data to advance equity based on “race, ethnicity, gender, disability, income, veteran status, or other key demographic variables.”

COVID-19 Workplace Safety

The Executive Order on Protecting Worker Health and Safety provides that ensuring the health and safety of workers is a national priority and a moral imperative and that it is the policy of the Biden Administration to protect the health and safety of workers from COVID-19. The Executive Order directs that the federal government take swift action to reduce the risk that workers may contract COVID-19 in the workplace and issue “science-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing; partnering with State and local governments to better protect public employees; enforcing worker health and safety requirements; and pushing for additional resources to help employers protect employees.” The Executive Order also directs the Occupational Safety and Health Administration to release clear guidance on COVID-19 and enforce worker health and safety requirements.

Following this, on January 29, 2021, the Department of Labor and the Occupational Safety and Health Administration issued updated guidance entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.

The Guidance offers some key measures including:

  • Assigning a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf;

  • Identifying where and how workers may be exposed to COVID-10 at work through a hazard assessment;

  • Identifying measures to limit COVID-19 spread including separation and sending home infected individuals from the workplace, maintaining social distancing, installing barriers, using face coverings and PPE, improving ventilation, maintaining good hygiene practices, and implementing routine cleaning and disinfection;

  • Protecting workers who may be at higher risk for severe illness (i.e., individuals with disabilities, older workers) through supportive policies and practices;

  • Establishing a system for effectively communicating with workers and educating and training workers on COVID-19 policies and procedures;

  • Instructing infected or potentially infected workers to stay home and isolate while at the same time minimizing the negative impact of quarantine and isolation on workers by allowing them to telework or use paid sick leave. The guidance further recognizes that employers with less than 500 employees are encouraged to provide leave under the Families First Coronavirus Response Act which is still available (although not mandatory) through March 31, 2021;

  • Implementing screening and testing protocols to protect the health and safety of the workplace;

  • Ensuring COVID-19 infections and deaths are recorded and reported in compliance with OSHA requirements;

  • Making sure workers who voice concerns reading COVID-19 related hazards are protected from retaliation;

  • Ensuring that a COVID-19 vaccine is available at no cost to all eligible employees and providing information and training to employees on the benefits and safety of vaccines; and

  • Not making a distinction between workers who are vaccinated and workers who are not vaccinated and requiring all workers to continue to follow protective measures.

This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.