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There is little doubt that the Biden Administration will pursue policy changes that will have a noticeable impact on the business and legal communities. While some policy changes will be industry sector-specific (the Keystone XL pipeline is a good example), there are some overarching policy areas that will likely see changes that will have broad effect. Below we will briefly address five topics that may be of interest to our clients.

  1. COVID-19

            On his first full day in office, January 21, 2021, President Biden laid out his national strategy to combat COVID-19, which addresses safely reopening businesses. The strategy provides that the federal government intends to protect the health and safety of America’s workers and will provide guidance and support to safely open businesses.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance Questions and Answers to address the legal implications when mandating the COVID-19 vaccination under federal Equal Employment Opportunity (EEO) laws. The guidance, discussed in detail here, addresses how business should approach situations when an employee cannot take the COVID-19 vaccination due to a disability and/or a sincerely held religious belief.

Considering President Biden’s national strategy and the most recent EEOC guidance, contractors have a growing number of variables to consider in formulating their reopening plans, keeping in mind that all employees may not be vaccinated. Contractors need to consider mandatory vaccination policies, as well as create and manage workplace policies and procedures that reflect the most recent developments. The Ward & Berry team has extensive experience crafting COVID policies and practices for our clients. We would be happy to assist you as you consider these important issues.

  1. Workplace Diversity

            On January 20, 2021, President Biden revoked former President Trump’s ban on certain federally funded diversity and inclusion training requirements for federal agencies, federal contractors, and recipients of federal funding. In the order, President Biden mandated that all government agencies promote diversity, which creates “opportunities for the improvement of communities that have been historically underserved.”

Similarly, in early December, the Nasdaq announced that it filed with the Securities and Exchange Commission (SEC) a proposal to advance board diversity and transparency of board diversity. The proposed rules would require that contractors listed on Nasdaq’s U.S. exchange all have “at least two diverse directors” and report their board composition.

Diversity, Equality, and Inclusion (“DEI”) policies and practices will be a priority for the Biden Administration. Management should conduct reviews to determine what needs to be done to improve diversity and inclusion. The Ward & Berry team has extensive experience performing OFCCP compliance reviews for our clients. We would be happy to help you examine and review your current policies and practices.

  1. Cybersecurity and Data Privacy

On September 17, 2020, the Setting an American Framework to Ensure Data Access, Transparency, and Accountability Act (SAFE DATA Act) was introduced. The legislation would mandate businesses to be more transparent in their data practices and, as such, would provide Americans with more choice and control over their data.

Considering cybersecurity is a priority for President Biden, and in the wake of the recent cyberattack on the United States Treasury, it is likely that new federal data privacy legislation is near.

Accordingly, contractors need to be able to answer the following questions:

  • What type of data does the company collect and why?
  • How does the company store and use the data?
  • If that data were lost or stolen, what impact would it have on the company?

Data breaches are almost certain to occur. You need to have a plan in place. We can help.

  1. Regulatory Review

            On January 20, 2021, President Biden published a Modernizing Regulatory Review memorandum, which ordered the director of the Office of Management and Budget (OMB) to produce “a set of recommendations for improving and modernizing regulatory review.”

            It is expected that President Biden will push for a tougher regulatory stance on many issues, but especially on environmental, social, and governance (ESG) issues. Accordingly, regulatory agencies will likely ramp up enforcement activity.

We are closely monitoring these regulatory changes and will promptly advise our clients on how these changes may affect their businesses. While contractors need to focus on complying with and adhering to existing regulations, they should also consider proposed regulations to ensure that they can pivot and comply, if necessary.

  1. Nondisplacement of Qualified Workers Under Service Contracts

Executive Order 13495 (dated January 30, 2009) required that workers on a service contract be given the right of first refusal for employment with a successor contractor if they would otherwise lose their jobs as a result of the expiration of the contract. On October 31, 2019, Executive Order 13897 revoked Executive Order 13495.

In the summer of 2020, then candidate Biden released The Biden Plan to Ensure the Future is “Made in All of America” by All of America’s Workers (“The Plan”). The Plan hints that Obama-era Executive Order 13495 policy may be ripe for reinstatement. This is an issue we are closely watching.

If you have questions or need guidance on how to implement or adhere to new regulations under the Biden administration, please do not hesitate to contact us.

Ward & Berry

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