Weekly Update for Government Contractors and Commercial Businesses – February 4, 2021

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Native American Law & Tribal Advocacy

The First 100 Days: President Biden Signs Memo on Tribal Consultation and Strengthening Nation-to-Nation Relationships, February 4, 2021, Tony Franco
Last week, President Biden signed a Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships. In the memorandum, President Biden says “It is a priority of my Administration to make respect for Tribal sovereignty and self-governance, commitment to fulfilling Federal trust and treaty responsibilities to Tribal Nations, and regular, meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian policy.” The memo also reaffirms Executive Order 13175, which “charges all executive departments and agencies with engaging in regular, meaningful, and robust consultation with Tribal officials in the development of Federal policies that have Tribal implications.” Read more here.

LABOR & EMPLOYMENT

How Government Contractors Should Prepare for Biden’s Mask-Wearing Mandate, January 29, 2021, Nichole Atallah, Sarah Nash, and Sara Nasseri
On his first day in office, President Biden signed Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing (EO), which requires federal agencies to issue guidance that complies with the Center for Disease Control’s recommended public health measures for combatting COVID-19, such as physical distancing and mask-wearing. On January 24, 2021, the Office of Management and Budget, in accordance with the EO, issued a memorandum to assist agencies in preparing their COVID-19 workplace safety plans, and they will have until January 29, 2021, to submit their drafts to the OMB for review. While agency-specific guidance has yet to be published, federal government contractors may want to start implementing requirements now and prepare for agency guidance. Read more here.

OSHA Issues COVID-19 Workplace Guidance
The Occupational Safety and Health Administration (OSHA) issued stronger guidance about identifying coronavirus exposure risks and implementing a COVID-19 prevention program at workplaces. The OSHA guidance contains recommendations as well as descriptions of mandatory safety and health standards. Read more here.

President Biden Aims for Federal Contractors to Pay a $15 Minimum Wage
Nextgov reported that President Biden directed his administration to develop an executive order that will require federal contractors to pay a $15 minimum wage and provide employees with emergency paid leave. Read more here.

President Biden Will Pivot DOL’s Contractor Watchdog Back to Enforcement
Bloomberg Law reported that the Biden Administration started to revamp Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP), which enforces federal anti-discrimination laws and affirmative action obligations among federal contractors. President Biden’s agenda emphasizes his commitment to eliminating race and gender pay gaps, and former agency officials, attorneys, and civil rights groups believe the OFCCP will help that push. Read more here.

DOL Ends Wage and Overtime Violation Self-Reporting Program
The Department of Labor (DOL) announced the immediate end of the DOL’s Wage and Hour Division’s Payroll Audit Independent Determination program, which had allowed employers to self-report federal minimum wage and overtime violations under the Fair Labor Standards Act to avoid litigation, penalties or damages, and prohibited affected workers from taking any private action on the identified violations. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: May the Clause Be with You: FAR 52.222-2, Payment for Overtime Premiums, February 9, 2021, Nichole Atallah. Read more here.

WEBINAR: Risk Prevention Strategies: Avoiding Costly FLSA Missteps, February 24, 2021, Nichole Atallah and Matt Feinberg. Read more here.

LITIGATION & DISPUTE RESOLUTION

Law360 Quotes Matt Feinberg on Anticipated Surge in FCA Litigation for 2021, January 26, 2021, Matt Feinberg
“Even if FCA settlements took longer to finalize because DOJ attorneys were working from home, it doesn’t mean they were twiddling their thumbs while waiting to hear back from defense lawyers. Instead, DOJ attorneys may have ended up with more free time to spend on audits and referrals from federal agencies,” said Matt Feinberg, Partner in PilieroMazza’s False Claims Act Team. Read more here.

Healthcare Blog Series: CMS and HHS-OIG Issue Final Rules Updating the Anti-Kickback Statute and Stark Law, January 25, 2021, Matt Kreiser
On November 20, 2020, over one year after releasing proposed changes to the Anti-Kickback Statute (AKS) and the Physician Self-Referral Law (Stark Law), the Department of Health and Human Services’ Office of the Inspector General (HHS-OIG) and the Centers for Medicare and Medicaid Services (CMS) issued two final rules, revising the AKS and Stark Law safe harbor regulations. The new regulations, with one exception, took effect on January 19, 2021. As was discussed in the second installment of this blog series, the key to the AKS’s and Stark Law’s proposed changes is the government’s focus on promoting coordination of care among providers and value-based care models to align federal healthcare program reimbursements with quality, cost-effective patient care. Satisfying the requirements of the new safe harbor regulations, like the previous versions, is situation-specific and can be complex. To address concerns on whether a particular payment or business arrangement is subject to an applicable safe harbor, government contractors and commercial businesses should seek legal advice to minimize the risk of potential government investigations, costly litigation, criminal liability, or exclusion from participation in federal healthcare programs. Read more here.

Upcoming Litigation & Dispute Resolution Presentations

WEBINAR: Risk Prevention Strategies: Avoiding Costly FLSA Missteps, February 24, 2021, Nichole Atallah and Matt Feinberg. Read more here.

GOVERNMENT CONTRACTS

Executive Order to Maximize the Use of American-Made Goods
President Biden signed an Executive Order to enhance Buy American policies, primarily through the federal procurement process. Read more here.

Executive Order on a Sustainable Public Health Supply Chain
President Biden signed an Executive Order directing agencies to fill shortfalls in medical supplies as soon as possible and use the Defense Production Act if necessary. Read more here.

DOD’s Cybersecurity Certification Requirements to Appear in DHS Contracts
Nextgov reported that the Department of Defense (DOD) is figuring out how to incorporate its Cybersecurity Maturity Model Certification program in contracts offered by the Department of Homeland Security. Read more here.

SBA Takes Steps to Improve First Draw Paycheck Protection Program Loan Review
The Small Business Administration (SBA) announced that it is taking steps to improve the First Draw Paycheck Protection Program loan review so that small businesses have as much time as possible to access much needed PPP funds. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: The 2021 Qui Tam Conference – Small Business and Grant Fraud Panel, February 18, 2021, Jon Williams. Read more here.

WEBINAR: May the Clause Be with You: FAR 52.203-16, Organizational and Personal Conflicts of Interest, February 23, 2021, Cy Alba. Read more here.