US President Joseph Biden and Vice President Kamala Harris have consistently framed their policies with what they call the four major “crises” facing the nation: COVID-19, the economy, climate, and inequity. Many of the most important executive actions and policy proposals during the first 100 days of the Biden-Harris administration, whether by legislative proposal, executive order, rulemaking, or other policy vehicle, have been framed as an attempt to address one or more of these four policy concerns, and most address more than one.
Day 1 of the administration started with a series of executive orders addressing matters within the president’s direct authority and then continued on to legislative proposals, starting with the American Rescue Plan of 2021 and continuing through the release of the proposed American Jobs Plan (focusing on infrastructure) on March 31, 2021, and the framework of the American Families Plan on April 28, 2021.
While 100 days of a 1,094-day term of office is in many respects an artifice, it historically serves as a point at which we take measure of performance. The following recap is a look back at some of the more wide-reaching and impactful (or in some cases, potentially impactful) executive orders, legislative actions, policy proposals, and other developments during the first phase of the Biden-Harris administration’s term.
CLIMATE CHANGE: ENVIRONMENTAL POLICY
The Biden-Harris administration has set its sights on an ambitious environmental policy agenda, focusing on climate change and environmental justice as key initiatives, and intends to implement its agenda through an “all of government” approach. The all-of-government strategy employs a coordinated, multi-department, multi-agency approach to address particularly complex problems.
The administration’s Executive Order on Tackling the Climate Crisis at Home and Abroad established three working groups at the core of the all-of-government strategy. They bring together cabinet members and people in other key positions across numerous federal agencies and departments to address climate change, environmental justice, and related economic revitalization issues.
- National Climate Task Force: The task force will lead the all-of-government approach and implement federal actions aimed at, among other things, reducing climate pollution, delivering environmental justice, protecting public health, and stimulating job growth. The executive order permits the members of the task force to prioritize action on climate change in their policymaking and budget processes and procurement efforts and their engagement with state, local, tribal, and territorial governments.
- Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization: The working group is charged with coordinating the identification and delivery of federal resources to revitalize communities whose economies are focused on coal, oil, gas, and power plants. Coordination with state, local, and tribal officials; unions; environmental justice organizations; community groups; and other stakeholders will enable the group to assess opportunities to protect the interests of coal and power plant workers.
- White House Environmental Justice Interagency Council: The executive order provides for a variety of specific actions to be taken, including new agency offices, screening tools, and directives to strengthen and coordinate enforcement. The council has been established to develop strategies to address current and historic environmental injustice and identify clear performance metrics to ensure accountability.
More information can be found in Biden-Harris Administration’s ‘All of Government’ Approach to Addressing Climate Change and Environmental Justice.
CLIMATE CHANGE: RENEWABLE ENERGY AND EMISSIONS
Between executive orders issued during the first week of the new administration and the Earth Day climate change summit that brought together world leaders to share how they are addressing climate change efforts in their countries, the Biden-Harris administration is taking significant steps to create a comprehensive approach to reducing emissions. To achieve the aggressive goals and detailed plans set out by the administration during its first 100 days, we are expecting more regulation, and more actions like executive orders, that can be implemented faster than new legislation.
- President Biden is expected to establish a national Clean Energy Standard, which will be the first time the United States will establish a national standard requiring utilities to use a specific amount of renewable energy power. His goal is to get energy production to be zero emissions by 2035, and to get to carbon net zero by 2050.
- The United States announced a 52% reduction in emissions by 2030, which will require significant changes across the country. A large part of that goal rests with how the United States produces energy and delivers that energy to consumers. More information can be found in Biden Sets Ambitious Goal for Greenhouse Gas Emissions.
- Another major component of President Biden’s plan focuses on extending and expanding tax credits for both renewable energy production and investments. Significant private investment will be required to achieve the targets the administration has laid out and meet the demand for renewable energy nationwide. The investment tax credits are designed to help bring in this investment to renewable energy development. A significant part of the tax credits is a separate credit for energy storage, which had only been allowed as part of a solar project for past tax credits. Incentivizing energy storage projects as standalone developments could be a big change.
- Manufacturing is also an important part of the plan. The Biden-Harris administration has announced that one way to encourage economic recovery after COVID-19 is through green growth. It is incentivizing the manufacturing of solar panels and wind-related materials in the United States to encourage a migration from purchasing those materials from Chinese manufacturers.
More information can be found in Achieving Energy Goals in the ‘New Abnormal.’
CLIMATE CHANGE: ELECTRIC VEHICLES
The Biden-Harris administration is widely considered to be a catalyst for facilitation of continued electric vehicle (EV) deployment on US roads. To date, Biden has emphasized his administration's support for continued growth of EVs in two ways: through the issuance of Executive Order No. 14008 and through the White House's proposed American Jobs Plan.
Executive Order No. 14008, issued in January, addresses, among other things, procurement of a federal EV fleet. Under Section 205 of the order, President Biden mandated the development of a comprehensive plan that would aim to use all available procurement authorities to achieve or facilitate clean and zero-emission vehicles for federal, state, local, and tribal government fleets.
In the American Jobs Plan, the White House proposes a $174 billion investment to spur the development of EVs and charging infrastructure. Through that investment, the plan would establish grant and incentive programs to develop a network of 500,000 charging stations, and would aim to replace or otherwise electrify 50,000 diesel transit vehicles and 20% of existing school buses nationwide with EVs.
The American Jobs Plan also proposes funding to electrify the federal fleet of vehicles, including US Postal Service vehicles, and proposes the continuation of certain tax incentives and creation of new point-of-sale rebates for purchasers of EVs made in the United States.
More information can be found in Legal Issues Facing Electric Vehicles Charging Projects.
ECONOMY: TAX CHANGES
President Biden, his administration, and Congress are focused on long-term economic recovery, deficit reduction, and tax reform. Current proposals cover a broad range of tax policy issues, from raising the corporate income tax rate to reforming the current international tax regime. See Tax Reform on the Horizon, which summarizes key elements of certain tax reform proposals that have emerged, for more information.
Relatedly, the Made in America Tax Plan would dramatically change the US tax landscape. Changes would include an increase to the corporate tax rate from 21% to 28%, as well as various international tax changes, including to the global intangible low-taxed income, the base erosion and anti-abuse tax, and the deduction for foreign derived intangible income. These tax changes are anticipated to fund $2 trillion needed for the American Rescue Plan Act over 15 years. The tax plan is described in a 25-page fact sheet that outlines the Biden-Harris administration’s policy ambitions to improve the country’s infrastructure, make targeted investments to improve the country’s global competitiveness, and address climate change.
ECONOMY: RELIEF FUNDS
President Biden signed the American Rescue Plan Act of 2021 on March 11, which provides $1.9 trillion in relief funds across a broad spectrum of categories, including additional support for vaccine distribution, school reopenings, small business grants, tax credits, pension funds, unemployment support, health benefits, and homeowner assistance. The American Rescue Plan Act restores the State Small Business Credit Initiative, which expired in 2017. This new iteration of the program will provide $10 billion in funding to support small businesses responding to and recovering from the economic effects of the COVID–19 pandemic. It also establishes a $29 billion Restaurant Revitalization Fund to address the pandemic’s devastating impact on the food services industry.
The act appropriates an additional $10 billion to carry out Titles I, III, and VII of the Defense Production Act, principally with respect to COVID-19-related medical supplies and equipment. The funds are intended for use in the purchase, production (including the construction, repair, and retrofitting of government-owned or private facilities as necessary), or distribution of medical supplies and equipment (including durable medical equipment) related to combating the COVID-19 pandemic. While the allocation of these funds is not specified in the bill, the funds are intended flexibly to cover a broad range of products, including products for the detection or diagnosis of the virus, personal protective equipment (PPE), and drugs, devices, and biological products for use in treating or preventing COVID-19. Importantly, the funds also can be used for machinery, manufacturing lines, facilities, and technologies necessary to produce these items, including in government-owned or private facilities.
The American Rescue Plan Act extends unemployment benefits until September 6, 2021, and provides an additional $300 payment per week. The mixed-earner supplement provides an extra $100 per week for those whose income is a mix of self-employed and wages paid by their employer. The act also extends the Pandemic Unemployment Assistance (PUA) program to September 6, capped at 79 weeks; the PUA program covers the self-employed, gig workers, part-timers, and others who are not eligible to receive regular unemployment benefits. There is also a new tax-free unemployment benefits allowance that will allow recipients with an annual household income of less than $150,000 to avoid paying tax on the first $10,200 of benefits.
More information can be found at Initial Key Takeaways from the American Rescue Plan Act of 2021.
ESG AND ERISA FIDUCIARIES
There are a number of issues in the ERISA fiduciary space that have already garnered the
new administration’s attention and there are certain clues about how a Biden Department of
Labor (DOL) may impact the regulation and enforcement of ERISA’s fiduciary standards. In the final weeks of 2020, the DOL finalized two regulations regarding ERISA fiduciary duties: Financial Factors in Selecting Plan Investments (the ESG rule), and Fiduciary Duties Regarding Proxy Voting and Shareholder Rights (the proxy voting rule). But in early March, the DOL issued an enforcement statement announcing that it will not enforce either of the two new rules.
For those plans that were under a current DOL investigation related to environmental, social, and governance (ESG) usage, the DOL’s announcement probably signals the end of its current enforcement effort in this area. This development is also viewed as a sign that the Biden DOL will prepare a new set of regulatory interpretations in these two areas. However, it may be some time until the DOL proposes such new guidance. There is also some uncertainty because a nonenforcement policy does not remove either rule.
Pooled employer plans (PEPs) are a new form of multiple-employer plans that were made available by the 2019 SECURE Act (with broad bipartisan support), facilitating the operation of 401(k) plan arrangements for groups of unrelated employers. The effective date for the PEP rules was January 1, 2021. During 2020, the DOL adopted a regulation on the registration of pooled plan providers, the entities that sponsor and administer PEPs, and also requested comments on prohibited transaction issues for PEP arrangements. We expect that during 2021 the DOL will continue to issue guidance on the many operational questions arising with PEPs.
The DOL has also announced that it will have a continued focus on investment advice fiduciary standards, with a particular focus on advice to plan participants and retail investors, also known as the “fiduciary rule.” In February 2021, the DOL allowed one component of the Trump-era interpretation of the fiduciary rule, PTE 2020-02, to become effective. But a few weeks later, the DOL issued FAQs on the fiduciary rule that stated that DOL will be taking further action in this space, including by (1) amending the investment advice fiduciary regulation, (2) amending PTE 2020-02, and (3) amending or revoking other available exemptions. As a result, it is expected that the Biden DOL will focus on continuing to issue rules that impact the fiduciary rule standards and, as the Obama DOL did, will seek to expand the scope of the definition of “fiduciary” to cover more forms of investment advice.
We expect that the DOL will continue its robust enforcement efforts, including with a possible new focus on data and cybersecurity. In fact, the DOL recently issued new subregulatory guidance on the topic, which could be a further signal that DOL investigations could be coming. Enforcement efforts could also include the continuation and possible expansion of the “missing participant” investigations and possible DOL and US Securities and Exchange Commission (SEC) coordinated enforcement efforts on the new investment advice exemption and Regulation Best Interest.
More information can be found in Hot Topics in Employee Benefits.
MAJOR LABOR AND EMPLOYMENT UPDATES
President Biden has issued several key executive orders and the DOL has been active with rulemaking and guidance to implement the administration’s employee-friendly agenda. As expected, the DOL has also taken steps to reverse Trump administration policies and realign with Obama-era policies.
Significant executive orders started on Day 1, with the rescission of a Trump executive order that had placed ambiguous restrictions on federal contractor diversity training. This provided immediate relief to federal contractor employers from reviewing, amending, and potentially suspending diversity training. The DOL’s Office of Federal Contractor Compliance Programs (OFCCP) followed the order by halting investigations into employee complaints regarding diversity training and by closing a hotline that received such complaints.
President Biden also issued an executive order instructing the DOL’s Occupational Safety & Health Administration (OSHA) to determine by March 15 whether to issue an Emergency Temporary Standard (ETS) regarding COVID-19. Employers have been awaiting the issuance of an ETS and this delay has caused some confusion as to whether OSHA intends to do so, but on April 26, Secretary Walsh indicated that the rule is under final review at the White House and should be issued within two weeks.
President Biden’s instruction to all agencies to freeze and review proposed regulations and regulations that were not yet effective has also impacted some DOL and Equal Employment Opportunity Commission (EEOC) rules. This included the Wage and Hour Division’s independent contractor rule: DOL has delayed the effective date and proposed to withdraw the rule, which action has been challenged. Other DOL rules are in litigation and subject to review and rescission, such as the joint employer rule and the OFCCP’s religious exemption rule. The EEOC released new proposed rules on the application of the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) to wellness programs on January 7, 2021. Those rules were also pulled back from publication in the Federal Register by the regulatory freeze implemented by the Biden-Harris administration.
On April 26, President Biden signed an executive order creating a White House task force to promote labor organizing. The task force will be led by Vice President Kamala Harris, with Secretary of Labor Marty Walsh as vice chair and other cabinet officials and top White House advisers serving as members. The task force will issue recommendations on how the government can use existing authority to help workers join labor unions and bargain collectively, and recommend new policies aimed at achieving these goals.
Two key policies for this administration are to raise the minimum wage to $15 and require employers to provide paid sick/FMLA leave. The $15 minimum wage proved to be a sticking point in the stimulus package, so President Biden announced on April 27 that he will issue an executive order increasing the minimum for certain workers on covered federal contracts. Similarly, if paid leave legislative efforts fail, President Biden could issue an executive order requiring an expanded group of federal contractors to provide paid sick leave. Congress’s expansion of tax credits under the American Rescue Plan Act to employers with less than 500 employees who voluntarily provide COVID-19-related sick and family leave was another route to partially achieve this policy goal.
Beyond executive orders and rulemaking, DOL has issued subregulatory guidance that may have slipped under the radar of some observers. Examples include a new set of FAQs posted on Wage and Hour’s website that include new COVID-19-related guidance, and reinstating the agency’s approach to seeking liquidated damages in pre-litigation investigations. DOL enforcement of these and other policies will be bolstered by the infusion of $200 million in appropriated funds under the American Rescue Plan Act. Congress earmarked this additional money for certain DOL agencies “to carry out COVID-19 related worker protection activities, and for the Office of Inspector General for oversight of the Secretary’s activities to prevent, prepare for, and respond to COVID-19.”
The Trump administration implemented more than 1,000 immigration-related changes, radically altering the current immigration system. These changes were undertaken through executive actions, policy memoranda, and regulations. In a sharp about-face, the Biden-Harris administration quickly announced a series of immigration-related short-term and long-term measures favoring immigration. This included a freeze on all published regulations not effective on January 20, 2021; withdrawal of all regulations not published by January 20, 2021; the introduction of immigration legislation; and the appointments of new heads of immigration agencies. President Biden revoked the Trump administration’s travel and immigration restrictions on a group of 13 countries, most of which are predominantly Muslim or African. He ordered the US Departments of Justice and Homeland Security to take “all appropriate actions” to safeguard the Obama-era Deferred Action for Childhood Arrivals program that offers works permits and deportation relief to more than 640,000 undocumented immigrants brought to the United States as children (so-called “Dreamers”). More information can be found in Biden-Harris Administration Proposes Sweeping Immigration Changes on Day 1.
In addition, after the US District Court for the Northern District of Illinois lifted its stay and vacated the Trump administration’s public charge rule, the US Citizenship and Immigration Services (USCIS) announced on March 9 that it would no longer apply the rule. The public charge rule essentially instituted a wealth test for individuals seeking lawful permanent residence, and required highly burdensome documentation of financial resources for applicants. The Biden-Harris administration announced that it would no longer defend the public charge rule in court, and USCIS has since formally withdrawn the rule.
President Biden rescinded Presidential Proclamation 10014, the prior administration’s ban that suspended the issuance of certain green cards overseas and barred entry into the United States of certain groups of immigrants. Effective immediately, these individuals should be eligible to enter the United States as permanent residents, and US consular posts should begin issuing immigrant visas to these applicants. More information can be found in President Biden Revokes Ban Suspending Entry of Certain Immigrants.
The administration allowed Presidential Proclamation 10052 (PP 10052) to expire as of March 31, 2021. PP 10052, implemented by the previous administration in June 2020, had suspended the issuance of certain nonimmigrant or temporary visas in several categories. The expiration of PP 10052 means that individuals who were previously subject to the proclamation will no longer be prohibited from applying for a visa in certain categories, nor will such applicants be required to seek National Interest Exceptions (NIEs) to the proclamation. This will be highly beneficial for companies and employees seeking to resume global mobility. More information can be found in Presidential Proclamation 10052 Expires. Regional COVID-19-related travel restrictions are still in force.
Finally, on April 27 USCIS reinstituted its longstanding deference policy, which had been rescinded under the Trump administration. The deference policy requires immigration adjudicators to give deference to prior decisions in the same visa matter, absent fraud or material changes. The reinstitution of the deference policy will increase stability and predictability in the immigration decisionmaking process and ensure that key talent can expect visa extensions for the same occupation and the same employer to be approved.