EXECUTIVE BRANCH
FPLG COVID-19 RESPONSE
EXECUTIVE BRANCH
[UPDATE: November 13, 2020]
The lack of message or policy from the Executive Branch about the pandemic continues even in the face of an intense surge in COVID-19 cases all around the United States.
The incoming administration is taking whatever aggressive steps it can during the transition but – of course – has no power until January 20, 2021, to put any policies into effect.
**********
[UPDATE: August 31, 2020]
The Executive Branch continues to lack a coherent or consistent message or policy concerning the COVID-19 crisis. There is no national plan to combat the pandemic except to shift responsibility to the state and local governments; from time to time, though, the White House attempts to pressure the sub-federal levels to follow one favored policy or another, and to punish others for failing to push those themes.
Particularly troublesome, though, is the Administration’s meddling in deliberations and decisions of the premiere health agencies including the CDC and the FDA. These formerly nonpartisan parts of the Executive Branch, along with safety agency OSHA, are now center stage during this pandemic. Nevertheless, other agencies including Treasury and Labor also have important roles in interpreting and implementing COVID-19-related laws.
**********
[UPDATE: May 3, 2020]
The Executive Branch lacks a coherent or consistent message or policy concerning the COVID-19 crisis. The White House’s Coronavirus Guidelines for America: 30 Days To Stop the Spread (March 31, 2020) has expired; they were not mandatory in any event. In addition, much of the decision-making has been taken up by the states.
The emergency federal legislation enacted over a series of weeks since March leaves a great deal of interpretation and operational discretion to the federal administrative agencies including the Treasury Department, the Small Business Administration, and others. There were difficult roll-outs for many of the programs including most notably the Payroll Protection Program (PPP); funds were distributed unevenly and they ran out quickly.
**********
[April 1, 2020]
The President and the federal executive departments and agencies issue regulations, rules, and guidelines either to carry out the Administration’s policies or to implement laws enacted by Congress.
In Coronavirus Guidelines for America (March 31, 2020), the White House issued its most recent “guidelines”: – 30 Days to Stop the Spread. These are not mandatory; the states and local governments have the authority to determine restrictions and limitations on activities. “Listen to and follow the directions of your state and local authorities.” They are also less restrictive than the stay-at-home orders of the California governor and of many other states. For instance, the White House guideline advises: “Avoid social gatherings in groups of more than 10 people.”
There are almost 100 executive departments and agencies that have some responsibility for aspects of the effort to combat the coronavirus. See Federal Agencies Responding to Coronavirus (COVID-19). The references listed here are just a few of the staggering number: already in existence, updated recently to cover COVID-19, or what will be a deluge of regulations, rules, and guidance on the major legislation just passed by Congress.
In some cases, they also overlap rules and guidance from state or local health agencies, labor departments, or other regulatory bodies.
[We’ll include some of these and other references in specific topic areas at other parts of this micro-site.]
The best way for employers to protect workers and stay ahead of OSHA enforcement (as well as potential civil and criminal liability for failure to protect workers) is to pay careful attention to OSHA and the CDC’s COVID-19-related guidance, understanding that the guidance may soon be revised to place more obligations on employers and that it may soon become mandatory
— David Dubberly, Esq., Nexen Pruett, (11/11/20)
The nation’s coronavirus response must be ‘locally executed, state managed, federally supported,’ White House officials have said repeatedly. In fact, much of their public health advice has been secret, segmented and inconsistent. Federal guidance isn’t always reaching the local official it’s meant to support.
— Liz Essley White, Center for Public Integrity (8/27/20)
The Centers for Disease Control and Prevention quietly modified its coronavirus testing guidelines this week to exclude people who do not have symptoms of Covid-19 – even if they have been recently exposed to the virus. Experts questioned the revision, pointing to the importance of identifying infections in the small window immediately before the onset of symptoms when many individuals appear to be the most contagious.
— Dr. Katherine T. Wu (8/25/20)
The Labor Department issued late-night guidance to the states (UIPL 18-20) that can only be described as breathtakingly cruel in its impact on charitable nonprofits, their current employees, and the communities they serve. DOL guidance issued late on April 27 instructs states to bill certain tax-exempt employers immediately for 100 percent of the costs of unemployment benefits paid to employees laid off as a result of the COVID-19 pandemic.
— National Council of Nonprofits (4/28/20)
This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.
REFERENCES & RESOURCES
- Employers can expect OSHA to issue emergency rule for COVID-19 early in Biden administration (November 11, 2020) David Dubberly, Esq., Nexsen Pruett
- Government Response to Coronavirus, COVID-19 USA.gov/coronavirus (Top U.S. Government Websites for COVID-19 Information) [current]What Employers Need To Know About COVID-19 Critical Infrastructure Designations (October 27, 2020) J. Micah Dickey, Esq., Fisher Phillips
- Can You Ask Employees Medical Questions During A Pandemic? The EEOC’s Guidance On Complying With The ADA During COVID-19 (October 27, 2020) Allison Sues, Esq., SmithAdmundsen
- CDC’s New Definition of “Close Contact” May Affect Workplace COVID-19 Response (October 26, 2020) David Williams, Esq., Snell & WilmerCDC Refines List of Underlying Conditions That Place Individuals at ‘Increased Risk of Severe Illness’ From COVID-19 (October 22, 2020) Tiffany Cox Stacy, Esq. & Charles Thompson IV, Esq., Ogletree,
- COVID-19: Whatever Happened to OSHA? (October 20, 2020) Charles Einsiedler, Jr., Esq., Pierce Atwood
- Federal OSHA and Its State Counterparts Make COVID-19 Safety Measures Top Priorities (October 20, 2020) Jeffrey S. Kopp, Esq., Foley & Lardner
- EEOC Issues COVID-Related Employment Guidance (September 25, 2020) Wagenmaker & Oberly PC
- What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Updated September 8, 2020) U.S. Equal Employment Opportunity Commission
- Payroll Tax Deferral Option Confuses Employers (September 4, 2020) Jonathan Crotty, Esq., Parker Poe LLP
- Proper Payment for Hours Worked by Remote Workers in the Age of COVID-19: U.S. Department of Labor Issues New Guidance (September 2, 2020) Lionel Schooler, Esq., Jackson Walker
- Deferral of Employee Social Security Taxes Not Even a Good Idea on Paper (September 2, 2020) Daniel Morgan, Esq., Blank Rome LLP
- SBA Issues Additional Guidance on PPP Loans Including Loan Forgiveness (August 30, 2020) Weiner Brodsky Kider PC
- New York Court Order Strikes Down Portions of DOL’s FFCRA Regulations (August 28, 2020) Kilpatrick Townsend & Stockton LLP
- Analysis: Trump Administration’s Coronavirus Advice is Secret, Fragmented and Contradictory (August 27, 2020) Liz Essley White, Center for Public Integrity
- Top US Officials Told CDC to Soften Coronavirus Testing Guidelines (August 26, 2020) Sheryl Gay Stolberg, The New York Times
- C.D.C. Now Says People Without Covid-19 Symptoms Do Not Need Testing (August 25, 2020) Katherine J. Wu, Ph.D., The New York Times
- Scientists Worry About Political Influence Over Coronavirus Vaccine Project (August 17, 2020) Sharon LaFraniere et al, The New York Times
- DOL Issues Breathtakingly Cruel Guidance Inflicting Billions in Immediate Costs onto Charitable Organizations Struggling to Serve Their Communities (April 28, 2020) National Council of Nonprofits
- Guidance on Preparing Workplaces for COVID-19, Document No. 3990-03-2020 (March 2020) Occupational Safety & Health Agency (OSHA)
- Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (updated March 21, 2020) Centers for Disease Control & Prevention (CDC)
- Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, EEOC-NVTA-2009-3 (updated March 21, 2020) Equal Employment Opportunities Commission (EEOC)
- Memorandum to the Heads of Executive Departments and Agencies Document No. M-20-17 (March 17, 2020) U.S. Office of Management and Budget (OMB)
- Administrative Relief for Recipients and Applicants of Federal Financial Assistance Directly Impacted by the Novel Coronavirus (COVID-19), Document No. M-20-11 (March 9, 2020), U.S. Office of Management and Budget