Task Force Issues Guidance To Implement Biden’s Orders to Vaccinate All Federal Workers & Contractors

On September 13, the Safer Federal Workforce Task Force (Task Force) published guidance for implementing the requirements of President Biden’s Executive Orders requiring all federal employees and any contractors or subcontractors working on a federal contract to get vaccinated. The guidance provides model safety principles for executive departments and agencies for their COVID-19 workplace safety plans.

The Task Force says that all federal employees must be fully vaccinated, except in limited circumstances, as quickly as possible and by no later than November 22, 2021. Agencies are instructed to work expeditiously to ensure their employees get fully vaccinated; this includes allowing employees to get vaccinated during work time and receive paid time off to address any side effects for themselves or family members.

As for contractor employees, the Task Force recognizes that they may not yet be subject to a contractual requirement to be vaccinated. Therefore agencies need to ask about the vaccination status of onsite contractor employees who are not yet contractually required to be vaccinated. In addition, those who are not fully vaccinated and are not part of an agency testing program must prove a negative COVID-19 test no later than the previous three days before entry to a Federal building.

When an individual discloses that they are not fully vaccinated or declines to provide information on their vaccination status, agencies are expected to treat that individual as not fully vaccinated for purposes of implementing safety measures, including mask-wearing and physical distancing.

The guidance provides specific details on handling contact tracing, travel, meetings and events, telework and remote work, maintaining a COVID-19 Coordination Team, symptom monitoring, workplace operations, confidentiality, and privacy.

To learn more about the detailed guidance visit https://www.saferfederalworkforce.gov/downloads/updates%20to%20model%20safety%20principles%209.13.21.pdf

Executive Orders Requiring COVID Vaccination of All Federal Workers & Contractors

On September 9th  President Biden issued two Executive Orders; Ensuring Adequate COVID Safety Protocols for Federal Contractors and Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Combined, these Orders will require that all federal employees and any contractors or subcontractors working on a federal contract get vaccinated regardless of where the work is performed.

To ensure adequate safety protocols against COVID-19, the Order mandates that all Executive departments and agencies establish contracts that comply with contractor or subcontractor workplace location guidelines. The guidelines were published by the Safer Federal Workforce Task Force (Task Force), established in January 2021 to protect the federal workforce. A vital aspect of this Order is that workplace locations extend beyond just government facilities to include anywhere an individual is working on or in connection with a Federal Government contract or contract-like instrument.

Regarding the mandatory Coronavirus Disease 2019 Vaccination for Federal Employees, each agency will need to implement a program requiring COVID-19 vaccination for all federal employees. Within seven days of this Order, the Task Force is expected to provide specific agency implementation requirements.

Biden’s Orders aim to halt the spread of COVID-19, including the Delta variant, and hope to promote the health and safety of the Federal workforce and the efficiency of the civil service. The White House Press Secretary Psaki remarked that the Orders took effect immediately with a 75-day ramp-up period. As more information becomes available regarding implementation, we’ll provide it here.

Bipartisan Infrastructure Bill – Part II

This article is the second of a two-part blog on the bipartisan infrastructure bill. This second article covers the agreement’s details.

The bipartisan infrastructure bill will make a significant long-term investment in America’s infrastructure. As discussed in Part I, the bill combines existing programs with $550 billion in new spending that the Senate approved as part of a bipartisan deal.

Here is a breakdown of the critical components:

• $110 billion for the repair, replacement, and rehabilitation of Roads, Bridges, and Major Projects for which the focus will be to address climate change mitigation, resilience, equality, and safety for users.
• $105 billion for modernizing and expanding Public Transit/Passenger and Freight Rails
• $73 billion for Power Infrastructure by building of new transmission lines and expanding renewable energy
• $65 billion for High-Speed Internet aimed at connecting all Americans with reliable internet service
• $65 billion for Environmental Remediation addressing the legacy pollution that harms the public health of communities and neighborhoods, as well as funds to clean up superfund and brownfield sites, reclaim abandoned mine land, and cap orphaned gas wells.
• $55 billion to deliver Clean Drinking Water, remove lead service lines and pipes, and address wastewater infrastructure issues.
• $50 billion for Resilience and Western Water Infrastructure to build resilience to physical and natural systems and making our communities safer and more resilient to the impacts of climate change and cyber-attacks.
• $25 billion to the modernization of Airports to address repair, renovations, and maintenance backlogs.

More particulars about what the bill will cover can be found at https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/28/fact-sheet-historic-bipartisan-infrastructure-deal/

Infrastructure Bill Grinds Forward

This article is the first of a two-part blog on the bipartisan infrastructure bill. The first article addresses its current status and challenges to passage. The second article will cover what’s included in the bill.

As Congress returns to Washington and takes up a slew of legislative actions, it will also address the $1.2 trillion bipartisan infrastructure bill. Its passage, however, is far from certain.

The bill, which includes $550 billion in new spending over eight years and $650 billion in the renewal of existing programs, was the work of a bipartisan group of Senators. The infrastructure bill passed the Senate on August 10, 2021.

Since Senate passage, the focus has shifted back to the House, where several evolving and critical bills are also pending, such as a broader $3.5 trillion budget framework, appropriations for the fiscal year 2022, which begins October 1, and the debt ceiling. The slim Democratic majority in the House and the critical importance of these bills give leverage to blocks within the Democratic House majority.

To get passage of both the broader $3.5 trillion budget framework and the infrastructure bill, House Speaker Nancy Pelosi committed to an infrastructure vote the end of September at the same time the House approved the budget framework. Passage of the framework allows negotiators to hammer out appropriations details.

There are still many ways in which the bill can be derailed. A lot depends on the details stemming from the approved budget framework.

The second article will cover the details of the infrastructure bill itself.

California Supreme Court Decision Changes Prevailing Wage Requirements In Special Districts

The California Supreme Court (Court) recently issued a decision that may expand the prevailing wage law. Traditionally the prevailing wage law has been interpreted to apply to construction-related work only. In Kaanaana v. Barrett Business Systems, the Court sustained a Court of Appeal decision that does not limit its application when the work is for public utility, reclamation, and other special districts. Thus, based on the Court’s interpretation, work for such public entities must be paid at prevailing wages.

Under the existing law, prevailing wage rates must be paid to all workers employed on “public works” projects that exceed $1,000.  Customarily, “public works” is understood to only apply to activities that are characterized as construction, including demolition, installation, repairs, and certain maintenance activities. But the Court reexamined this assumption and concluded that specific types of special districts are independent of traditional limitations to infrastructure-related work. Therefore potentially extending the prevailing wage law to any manual or non-manual work done under a contract with a special district worth more than $1,000.

Currently, the state Labor Commissioner prescribes prevailing wage rates for construction and maintenance-related workers. However, now the Commissioner may need to make such a wage determination applicable to other types of contract work included within prevailing wage requirements.

Virginia’s New Prevailing Wage Law In Effect

The Virginia Prevailing Wage law became effective May 1, 2021, requiring contractors and subcontractors working with any Virginia State agency or localities under any public contract over $250,000 to pay prevailing wages and benefits to all workers performing services on that contract. Contractors need to be aware that the law also has certification and record-keeping requirements for which there are hefty penalties for non-compliance.

The law applies to any existing public contract over $250,000 that has adopted the new prevailing wage requirements. Any solicitations issued by Virginia agencies or localities on or after May 1, 2021, are expected to have the prevailing wage requirements incorporated into the bid solicitation or contract itself.

Contractors and subcontractors doing work for Virginia should be aware that:

• Upon awarding a public contract subject to the new law, they must certify to the Department of Labor and Industry (DOLI) Commissioner the pay scale for each craft or trade employed under the public contract.
• They are required to preserve wage payment records for which the DOLI may request an audit.
• They are required to prominently post the prevailing wage rate for each craft and classification on the project in easily accessible places.

Those who do not comply are responsible for repaying the prevailing wage due, plus an annual rate of eight percent accruing from the date the wages were unpaid and disqualification from bidding on public contracts until the contractor pays all its workers in full. Additionally, contractors who willfully violate the law will be guilty of a Class 1 misdemeanor, which involves up to twelve months of jail confinement, a fine of up to $2,500, or both.

New Bipartisan Infrastructure Framework

The White House announced an agreement with a bipartisan group of Republican and Democratic Senators on a Bipartisan Infrastructure Framework. The deal calls for $1.2 trillion in total spending and nearly $600 billion in new spending.

According to the White House fact sheet, the Plan makes “investments in clean transportation infrastructure, clean water infrastructure, universal broadband infrastructure, clean power infrastructure, remediation of legacy pollution, and resilience to the changing climate.” Supporters cite the Framework’s benefits, job creation, and improved U.S. competitiveness.

Specifically, the Bipartisan Infrastructure Framework will

• Modernize and expand transit and rail networks;
• Repair and rebuild roads and bridges;
• Build a national network of electric vehicle charging stations;
• Electrify school and transit buses;
• Eliminate lead water lines;
• Expand high-speed internet;
• Upgrade the power infrastructure;
• Create a new Infrastructure Financing Authority;
• Make infrastructure more resilient in general to climate change, cyber-attacks, and extreme weather.

The Bipartisan Infrastructure Framework will result in one of the most significant investments in U.S. infrastructure and competitiveness in history. Critics have pointed at the cost, but the Framework also addresses potential funding methods such as unemployment insurance program integrity, the redirection of unused unemployment relief funds, reinstatement Superfund fees for chemicals, 5G spectrum auction proceeds, and others.

A great deal of work still needs to be done by the White House and Members of Congress that support the Framework before it can be approved.

Biden Administration Releases FY22 Budget Request

President Biden released the federal government’s budget request for fiscal year 2022. The budget requests $5.7 trillion in spending in FY22, which is about $1.5 trillion less than FY21. During the past several years, covid relief increased federal spending.

Biden’s budget addresses several administration priorities such as the infrastructure, families, and a commitment to reinvest “in crucial public services, benefits, and protections.”

One of the agencies that will play a leading role in implementing the administration’s priorities is the U.S. Department of Labor. Labor’s budget request for FY22 is $14.2 billion, a $900 million increase over FY21. The U.S. Department of Labor is responsible for several initiatives such as enhancing economic pathways for workers and improving worker protections and equity.

One of the Labor bureaus of interest is the Wage and Hour Division (WHD), which enforces workforce protections such as the Davis-Bacon Act and Service Contract Act. The budget request calls for $327.5 million in FY22, a $32.5 million increase compared to FY21. The majority of the increase would add 175 FTE to restore enforcement staff.

The administration’s budget request is just a proposal and would require Congressional approval. However, the request signals the administration’s policy priorities.

WHD Announces the Withdrawal of the Independent Contractor Rule

Earlier this month, the Wage and Hour Division (WHD) announced the withdrawal of the Independent Contractor rule effective May 6, 2021. The announcement noted that the current final rule published on January 7, 2021, had significantly undermined safeguards against unfair pay practices. Therefore the withdrawal was essential to protect workers’ rights to the minimum wage and overtime compensation protections of the Fair Labor Standards Act (FLSA).

In February, as the new Biden administration transitioned in, the WHD published a proposal to delay the Independent Contractor Rule’s effective date to allow for time to consider potential issues associated with the rule established by the Trump administration. The WHD followed this in March with a notice of proposed rulemaking (NPRM) to withdraw the Independent Contractor Rule explaining that the rule was inconsistent with the FLSA’s text and purpose and would have a confusing effect on workers and businesses alike due to its departure from judicial precedent.

The WHD sought comments on its NPRM to withdraw the Independent Contractor Rule, providing a comment period that expired on April 12, 2021, for which they received more than 1,000 responses. The commenters expressed opposition to the Independent Contractor Rule predominantly because the rule would have facilitated the exploitation of workers reclassified or misclassified as independent contractors due to the rule.

After considering the comments submitted in response to the NPRM, the WHD finalized the withdrawal of the Independent Contractor Rule. They anticipate that the withdrawal of the independent contractor rule will avoid a decline in workers’ access to employer-provided fringe benefits such as health insurance and retirement plans and avoid a reduction in other benefits such as workers’ compensation coverage and unemployment insurance.

Biden Issues Executive Order Raising Minimum Wage for Federal Contractors

President Biden issued an Executive Order (Order) requiring federal contractors to pay a $15 minimum wage by January 30, 2022, to employees working on covered federal contracts. The Order aims to promote economy and efficiency in Federal procurement by increasing the hourly minimum wage paid by the parties that contract with the Federal Government.

This Order builds on former President Obama’s 2014 Executive Order 13658, requiring federal contractors to pay employees working on federal contracts $10.10 per hour, subsequently indexed to inflation. Currently, workers performing work on covered federal contracts are entitled to a minimum wage of $10.95 per hour, and the tipped minimum wage is $7.65 per hour.

By January 30, 2022, all agencies must implement the $15.00 minimum wage into new contract solicitations, and by March 30, 2022,  all new contracts must reflect the minimum wage.  Additionally, agencies need to implement the new higher wage into existing contracts when parties exercise their option to extend.

The change applies to a wide range of federal workers from cleaning and maintenance, nurses, cafeteria, and other food service workers and tipped workers previously left out. The federal contractor minimum wage applies to contracts covered by the Davis-Bacon Act, the Service Contract Act, and others.  Furthermore, the Order extends the required $15 minimum wage to federal contract workers with disabilities.

The U.S. Department of Labor Wage and Hour Division and the Federal Acquisition and Regulatory Council will initiate the rulemaking to implement and enforce this Order. After 2022, the minimum wage will also be subject to annual inflation increases set forth by the Secretary of Labor.

The fact sheet detailing the executive actions can be reviewed at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/27/fact-sheet-biden-harris-administration-issues-an-executive-order-to-raise-the-minimum-wage-to-15-for-federal-contractors/