May 29, 2020
President Trump issued an executive order aimed at reducing the regulatory barriers employers are facing at the federal level as the nation returns to the workplace.
The executive order directs regulatory agencies to “rescind, modify, waiv[e], or provid[e] exemptions from regulations and other requirements that inhibit economic recovery…” The EO further calls on regulatory agencies to “give businesses…especially small businesses, the confidence they need to reopen by providing guidance on what the law requires” and “by recognizing the efforts of businesses to comply with often-complex regulations in complicated and swiftly changing circumstances, and by committing to fairness in administrative enforcement and adjudication."
Compliance assistance for employers: The EO asks all agencies to be quick to provide pre-enforcement rulings to employers seeking to understand whether their proposed conduct, undertaken in response to the virus outbreak, is compliant with the laws and regulations the agency enforces. In theory, this could allow employers to receive assurance that the actions they are taking as they reopen their workplaces will not expose them to agency enforcement actions.
Government should bear the burden of proof: The EO further dictates that in administrative enforcement and adjudication, the government should bear the burden of proving an alleged violation of law; conversely, employers should not have to bear the burden of proving compliance. The EO calls for several other adjudicative principles, including: (1) prompt and fair enforcement; (2) proportionate and transparent penalties; and (3) liability imposed only for violations of statutes or duly issue regulations, after notice and an opportunity to respond.
Outlook: While employers will continue to face a patchwork of state regulatory burdens, the EO is consistent with the Trump administration’s commitment to reopening the economy amidst the COVID-19 pandemic and could afford employers some regulatory relief at the federal level. As Congress mulls providing liability protections for businesses as part of the next COVID-19 relief bill, the EO provides a small preview for what reduced liability could look like for the duration of the pandemic.