April 19, 2021

Volume XI, Number 109


April 16, 2021

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#WorkforceWednesday: Action Pending from Biden’s OFCCP and OSHA

This week on our special podcast series, Employers and the New Administration, employers await action from two agencies: the Office of Federal Contract Compliance Programs (“OFCCP”) and the Occupational Safety and Health Administration (“OSHA”).

See below for the video edition and the extended audio podcast:

Employers Prepare for Action from the Biden OFCCP and OSHA

Shortly after taking office, President Biden named a new OFCCP director, former Obama-era appointee Jenny Yang. While there has been much speculation about the new direction of the agency, action has been limited so far. Employers are also watching closely for OSHA’s Emergency Temporary Standard. Just this week, Secretary of Labor Marty Walsh announced that the materials should be on hold until they are “updated to reflect the latest scientific analysis of the state of the disease.” The Department of Labor indicated it won't review the standard's regulatory text but will instead focus on the standard's analysis of the disease.

How can businesses prepare for changes to come at these two agencies? Guest attorney Bob O’Hara discusses the regulatory actions employers should anticipate. Attorney David Garland leads the conversation.

Employers and the New Administration is a special podcast series from Employment Law This Week®, with analysis of the Biden administration’s first 100 days. Special podcast episodes air every other #WorkforceWednesday. Subscribe on your preferred podcast platform below.

Other Highlights

Vaccination Ambassadors

The Centers for Disease Control and Prevention has asked employers to consider appointing "vaccination ambassadors" to increase the likelihood of co-workers getting the COVID-19 vaccine, but implementing the program would require certain legal and business precautions. Read more in SHRM. Epstein Becker Green’s alliance with Deloitte Legal can help you successfully manage your vaccination policies and programs. Learn more.

Post-Employment Retaliation Under FCA

The U.S. Court of Appeals for the Sixth Circuit recently concluded that the False Claims Act does cover post-employment retaliation, creating a circuit split and different rules for employers in different jurisdictions. Click for more about this circuit split.

New “Ban the Box” and EEO Requirements in IL

Illinois recently enacted SB 1480, placing significant restrictions on employers’ use of criminal conviction history and imposing an EEO reporting requirement. The newly required Illinois EEO report will be made public and carries serious penalties for failure to comply.

Recreational Marijuana Now Legal in NY

New York’s new recreational marijuana law provides that employers may not refuse to hire, discharge, or otherwise discriminate against an individual due to cannabis use that occurs “prior to the beginning or after the conclusion of the employee’s work hours, and off the employer’s premises and without use of the employer’s equipment or other property.” New York employers, however, may continue to maintain a drug-free workplace.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 97



About this Author

George Carroll Whipple III, Epstein Becker Green, Workforce Management Lawyer, Hiring Matters Attorney

GEORGE CARROLL WHIPPLE, III, is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He hosts the firm's innovative weekly video program, Employment Law This Week.

Mr. Whipple:

  • Counsels employers on workplace issues, including hiring and promotion, firing and discipline, wage and hour, and the implementation of employment policies, to ensure compliance with federal and state laws

  • ...
David Garland, Epstein Becker, employment lawyer

DAVID W. GARLAND is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York and Newark offices of Epstein Becker Green. He is also Chair of the firm’s National Employment, Labor & Workforce Management Steering Committee and a member of the firm’s Board of Directors.

Mr. Garland is frequently retained in matters involving high-profile, high-stakes, and highly sensitive cases. These matters include:

  • Sex harassment
  • Employment discrimination
  • Whistleblowing
  • Retaliation
  • Equal...