Beltway Buzz, June 18, 2021

Juneteenth Is Now a Federal Holiday. This week, President Joe Biden signed into law the Juneteenth National Independence Day Act, making June 19—the holiday commemorating the emancipation of enslaved African Americans in the United States—a federal holiday. (The Buzz wrote about the significance of Juneteenth last year.) From a labor and employment policy perspective, this means that federal workers will receive a paid day off (or time and a half, if they are required to work) on or around June 19, depending on which day of the week the holiday falls. Because of the speed with which the bill was enacted, and because June 19, 2021, falls on a Saturday, the holiday will be observed today, June 18, 2021. Many are hoping that employers in the private sector will follow suit. The Buzz sometimes pokes fun at members of the U.S. Congress for being ineffective, but in this case they deserve credit for passing this historic act.

Spring Regulatory Agenda Released. Late last week, the Biden administration released its first Unified Agenda of Regulatory and Deregulatory Actions—the twice-per-year data dump that forecasts for stakeholders potential regulatory developments in the months ahead. This agenda also provides an initial glimpse into a new administration’s major policy priorities. Let’s take a look at what is in store on the labor and employment regulatory front. (Note that the U.S. Equal Employment Opportunity Commission (EEOC) did not submit any entries for this agenda.)

U.S. Department of Labor

• Wage and Hour Division (WHD)
  • Federal Contractor Minimum Wage. In July 2021, the WHD is scheduled to issue a notice of proposed rulemaking (NPRM) to implement President Joe Biden’s Executive Order 14026, increasing the minimum wage for employees of federal contractors.
  • Davis-Bacon Act. The WHD plans to release an NPRM in November 2021 “to update and modernize the regulations implementing the Davis-Bacon and Related Acts to provide greater clarity and enhance their usefulness in the modern economy.”
  • Joint Employer. The agenda does not provide a timeframe for the WHD’s finalization of its proposal to rescind the Trump-era Fair Labor Standards Act joint-employer rule.
  • Overtime. Listed under “long-term actions” (meaning that no regulatory action is expected in the next year) is an entry indicating that the WHD is reviewing the current overtime regulations. Stay tuned for what this could mean.
• Occupational Safety and Health Administration (OSHA)
  • Airborne Infectious Diseases. OSHA is expected to issue an NPRM in December 2021 “to protect employees from infectious disease exposures to pathogens that can cause significant disease.”
  • Injury and Illness Recordkeeping. In December 2021, OSHA is slated to resuscitate provisions of its 2016 recordkeeping rule that were stripped out by the Trump administration. OSHA will propose restoring “the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees.”
  • Workplace Violence. In December 2021, OSHA is scheduled to initiate the small business advocacy review process to consider the development of a standard to address workplace violence in health care and social assistance settings.
  • Heat Stress Standard. In October 2021, OSHA is expected to issue a request for information (RFI) that would help “the agency to begin a dialogue and engage with stakeholders to explore the potential for rulemaking” on a potential heat stress standard.
  • Lock-Out/Tag-Out. OSHA is planning to issue in January 2022 an NPRM to address how “computer-based controls of hazardous energy” potentially conflict with the current lock-out/tag-out standard.
• Office of Federal Contract Compliance Programs (OFCCP)
  • Religious Exemption for Federal Contractors. The agenda does not provide a timeframe for OFCCP to finalize its proposed rescission of the Trump-era regulation related to religious exemptions for federal contractors.
  • Investigation Procedures. In September 2021, OFCCP is slated to propose changes to the November 2020 final rule codifying certain procedures of OFCCP’s investigation processes.
• Employee Benefits Security Administration (EBSA)
  • SECURE Act Regulations. By the end of June 2021, EBSA can be expected to issue a proposed rule implementing the Setting Every Community Up for Retirement Enhancement (SECURE) Act.
  • Definition of “Fiduciary.” In December 2021, EBSA is scheduled to wade into the fiduciary waters again.

National Labor Relations Board (NLRB)

• Video Conferences. In September 2021, the Board “will be soliciting public input on the use of videoconference technology to conduct, in whole or in part, all aspects and phases of unfair labor practice cases and representation case proceedings, and on potential amendments to its procedural rules regarding the use of videoconference technology.”
• Organizational Disclosures. By the end of June 2021, the Board is expected to issue a final rule “to require disclosure of parties’ and other entities’ organizational relationships.”

U.S. Department of Homeland Security / U.S. Citizenship and Immigration Services (USCIS)

• H-1B Changes. In November 2021, USCIS is slated to issue an NPRM to make changes to the H-1B program, including potential changes “relating to the ‘employer-employee relationship’” and “new requirements and guidelines for site visits.”
• Deferred Action for Childhood Arrivals (DACA). In August of 2021, USCIS will issue an NPRM “to preserve and fortify DACA.”
• Fee Schedule. In November 2021, USCIS is scheduled to issue an NPRM that would “rescind and replace the changes made by the August 3, 2020, rule and establish new USCIS fees to recover USCIS operating costs.” The Trump-era rule was enjoined by a federal court in September 2020.

Nominations Update. This week, the U.S. Senate Committee on Health, Education, Labor, and Pensions (HELP) advanced the nomination of Doug Parker to lead OSHA. If confirmed by the U.S. Senate, Parker will take the lead in implementing the recently finalized COVID-19 emergency temporary standard, in addition to overseeing the regulatory items mentioned above. As for other nominees, Julie Su (nominated to be deputy secretary of labor) is in the same position as Parker, as she awaits a final vote on the Senate floor after being approved by the HELP Committee on April 21, 2021. Lastly, Jennifer Abruzzo, President Biden’s nominee to be general counsel of the NLRB, is still stuck in committee after failing to advance in May 2021.

Bostock and LGBTQ Resources. June 15, 2021, marked the first anniversary of the Supreme Court of the United States’ decision in Bostock v. Clayton County, Georgia. In conjunction with the anniversary, the EEOC announced a new landing page that “consolidates information the public needs to know about the scope of protections against discrimination based on sexual orientation and gender identity.” The Commission also issued a new technical assistance document containing frequently asked questions on issues including workplace restrooms and grooming policies (though Republican commissioners expressed concern that the guidance touches on issues not addressed by Bostock).

Federal Holidays Explained. When President Biden signed the Juneteenth National Independence Day Act into law this week, Juneteenth became the 12th permanent federal holiday in the United States. Those holidays are New Year’s Day, the Birthday of Martin Luther King Jr., Inauguration Day (only every four years, of course), Washington’s Birthday (it is not “Presidents’ Day”), Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. In 1870, Congress established the first U.S. federal holidays when it recognized New Year’s Day, Independence Day, Thanksgiving Day, and Christmas Day. Juneteenth is the first recognized federal holiday since the Birthday of Martin Luther King Jr. was established as a holiday in 1983. Of course, as alluded to above, these holidays technically apply only to federal employees and the District of Columbia, as each state (and each private-sector entity) individually establishes its own holidays.

The Buzz will be off next week, as we will be attending Ogletree Deakins’ 2021 National Workplace Strategies Seminar in Austin, Texas. We will publish again on July 2, 2021.