Labor laws: Four changes under the Biden administration

By Riley SimpsonFebruary 09, 2021

President Joe Biden has already introduced changes to paid leave and OSHA

Within two weeks of taking office, President Joe Biden has quickly introduced the American Rescue Plan, which his administration has said will help U.S. families and workers affected by the Covid-19 pandemic by including (among other directives) direct stimulus payments, a raised minimum wage and bolstering paid leave.

Last month, Conexpo-Con/Agg 365 talked to attorney Iris Halpern, of the Denver-based law firm Rathod Mohamedbhai LLC, about the legal support construction workers are entitled to during the pandemic.

We discussed those points again with Halpern and went over Biden’s new proposals for helping U.S. workers, especially those in the construction industry.

Strengthening paid and medical leave

Congress passed the Families First Coronavirus Response Act (FFCRA) in spring 2020, and according to the White House, that legislation helped decrease Covid-19 infections by 400 cases per state per day – which translated to one prevented case per day per 1,300 workers. The FFCRA allowed employees the option to take up to two weeks of paid sick leave.

However, the FFCRA only applied to companies with more than 50 and fewer than 500 employees, and the Center for American Progress estimated those exemptions excluded 106 million U.S. workers from paid leave coverage.

And although a government down payment in December 2020 extended the FFCRA’s tax credits to March, that extension did not renew the requirement that employers provide paid leave.

Biden’s proposed plan will work doubly by putting that paid leave requirement back in place for employers and by eliminating exemptions for employers with fewer than 50 and more than 500 employees.

Halpern predicted last month that Biden would expand paid leave coverage, and she said his plan should benefit more than 100 million workers.

In terms of medical leave, the FFCRA provided paid sick leave or expanded family and medical leave for specified reasons related to Covid-19.

Biden’s broadens benefits and definitions by providing “over 14 weeks of paid sick and family and medical leave to help parents with additional caregiving responsibilities when a child or loved one’s school or care center is closed; for people who have or are caring for people with COVID-19 symptoms, or who are quarantining due to exposure; and for people needing to take time to get the vaccine.”

Paid and medical leave obstacles

Although the FFCRA benefited millions during the pandemic last year, Halpern said that the U.S. Department of Labor, which was tasked with enforcing the FFCRA, tried to unilaterally exempt industries such as healthcare workers from paid leave coverage.

Halpern pointed to a Southern District of New York court case, which was resolved in August 2020, in which the State of New York sued the Department of Labor for exceeding its authority and defining the term “healthcare worker” too broadly.

According to The National Law Review, the Department of Labor’s broad definition caused many healthcare practices and facilities to deny their employees’ requests for paid sick leave that otherwise would have been provided to non-healthcare workers.

Iris Halpern, attorney, Rathod Mohamedbhai LLC

But Biden’s American Rescue Plan will have much wider coverage under its “beefier” medical leave plan, Halpern said.

The president will also have a new Labor Secretary in Boston Mayor Marty Walsh (once he’s confirmed on Feb. 4).

Walsh has extensive background in labor unions and with the construction industry: He was part of Laborers Local 223 in Boston, and from 2011-13, he was head of the Building and Construction Trades Council.

“I think [Walsh and Biden] will have a more pro-labor approach,” Halpern said of the current administration.

OSHA reform

The Occupational Safety and Health Administration (OSHA) was due to update its standards under the Biden administration, according to Halpern.

Last week, her prediction came true as OSHA introduced stricter guidelines, especially in terms of Covid-19 prevention: the use of personal protective equipment (PPE) and employing social distancing and physical barriers.

Biden signed an Executive Order in his first week in office to consider “whether emergency temporary standards on Covid-19, including with respect to masks in the workplace.”

Those emergency temporary standards are effective once they are issued and don’t require public comment or hearings.

The president has also included in his Covid-19 relief package proposals for more funding for OSHA inspectors and enforcement.

Halpern said OSHA’s new direction is a welcome change after the organization’s failings enforcing safe conditions for meat industry employees in 2020 – Democrats in the U.S. House of Representatives have launched an investigation into Tyson Foods, Smithfield Foods and JBS USA after approximately 54,000 workers at 569 meatpacking plants tested positive for Covid-19, with at least 270 of those people dying.

At the JBS USA plant in Greeley, Colo., Halpern’s home state, hundreds of workers contracted the virus, and at least six died.

“[OSHA under the previous administration] did nothing to stop this,” Halpern said. “No PPE, no plastic barriers. They weren’t taking these safety precautions seriously. The writing’s on the wall.”

Construction industry changes on the horizon

The coming OSHA regulation shifts will undoubtedly affect the construction industry, Halpern said, although specific changes on jobsites will take time to become clear.

Halpern said OSHA will investigate all its cases more aggressively and impose higher fines for safety violations under Biden’s administration.

“I think you’re going to start seeing a lot more investigations happen more promptly no matter what industry you’re in,” Halpern said.

Covid-19 will be a priority for OSHA, but with most construction work taking place outside, Covid-19 will be somewhat less likely to spread as opposed to all-indoors activities.

Overall, Halpern said the new administration’s commitment to labor and workers will mark “a sea change.”

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