Trending in Telehealth: February 2025
Trending in Telehealth highlights monthly state legislative and regulatory developments that impact the healthcare providers, telehealth and digital health companies, pharmacists and technology companies that deliver and facilitate the delivery of virtual care.
Trending in February:
Interstate compacts
Telepharmacy services
Veterinary services
Telehealth practice standards
A CLOSER LOOK
Proposed Legislation & Rulemaking:
North Dakota proposed amendments to the North Dakota Century Code related to optometrist licensure and standards for providing tele-optometry. The amendments delineate the circumstances under which a licensed optometrist may use telemedicine to provide care. Proposed practice standards include requirements to establish a proper provider-patient relationship and requirements related to informed consent.
In Indiana, Senate Bill 473 proposed amendments that would allow providers to prescribe certain agonist opioids through telemedicine technologies for the treatment or management of opioid dependence. Current law only allows partial agonist opioids to be prescribed virtually.
Finalized Legislation & Rulemaking Activity:
Ohio enacted Senate Bill 95, authorizing the operation of remote dispensing pharmacies, defined as pharmacies where the dispensing of drugs, patient counseling, and other pharmacist care is provided and monitored through telepharmacy systems.
The Texas Health and Human Services Commission adopted an amendment to the Texas Government Code, requiring that providers be reimbursed for teledentistry services. The amendment allows flexibility for a dentist to use synchronous audiovisual technologies to conduct an oral evaluation of an established client. This change makes oral evaluations more accessible and prevents unnecessary travel for clients in the Texas Health Steps Program.
The Arkansas governor signed Senate Bill 61 into law, authorizing the practice of veterinary telemedicine in the state. The bill includes practice standards for veterinary telemedicine and provision of emergency veterinary care.
Also in Arkansas, House Bill 1427 enacted the Healthy Moms, Healthy Babies Act. The act amends Arkansas law to improve maternal health and establish reimbursement procedures for remote ultrasounds.
Compact Activity:
Several states have advanced licensure compacts. These compacts enable certain categories of physicians to practice across state lines, whether in person or via telemedicine. The following states have introduced bills to enact these compacts:
Dietitian Licensure Compact: Mississippi, Kansas, and North Dakota.
Social Work Licensure Compact: Mississippi, Maryland, and North Dakota.
Occupational Therapy Licensure Compact: North Dakota and New Mexico.
Audiology and Speech Language Pathology Compact: New Mexico.
Why it matters:
States continue to expand practitioners’ ability to provide telehealth services across state lines. While telemedicine is often seen as an alternative method for care delivery, it can sometimes be the most effective and efficient option. Expanding interstate licensure compacts improves access to qualified practitioners, particularly in underserved and rural areas. These compacts also enhance career opportunities and reduce the burdens associated with obtaining multiple state licenses.
States continue to apply telehealth practice standards to various professions. Legislative and regulatory trends reflect recognition that telehealth can be used in a variety of specialty practices, including veterinary medicine, dentistry, and optometry.
Telehealth is an important development in care delivery, but the regulatory patchwork is complicated.
The Omitted Spouse Claim Against an Estate
Despite an intention to add a spouse or domestic partner to their Will, at times a decedent may neglect to do so prior to his/her death. Under such circumstances, however, a surviving spouse or domestic partner may be entitled to a share of the decedent’s estate pursuant to the omitted spouse statute. This statute directly addresses scenarios where the marriage or domestic partnership occurs after the decedent had previously executed a Will, however, did not amend his/her Will after marriage to the surviving spouse or the formation of the domestic partnership.
This New Jersey statute is codified under N.J.S.A. 3B:5-15. In order to be entitled to take as an omitted spouse or a surviving domestic partner, the surviving spouse or domestic partner must have either formed the domestic partnership or married the decedent after the decedent had executed their Will. Provided that threshold issue is met, then the surviving spouse or domestic partner would be entitled to a share of the decedent’s estate as if the decedent had died without a Will.
The relevant New Jersey statute which governs the surviving domestic partner’s or the surviving spouse’s share is N.J.S.A. 3B:5-3. This statute is highly technical in determining the precise share that the surviving domestic partner or surviving spouse is entitled to receive. In general, the statute looks at whether the surviving domestic partner or surviving spouse had children with the decedent, whether the decedent had his/her own children, and finally, whether the decedent has surviving parents. As such, it is suggested that if you are a surviving domestic partner or surviving spouse that you retain counsel to assist you with this technical calculation.
Pursuant to the omitted spouse statute, however, there are exceptions where the surviving domestic partner or surviving spouse may not be entitled to receive a portion of the decedent’s estate. These exceptions are as follows. The first exception is if it appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse or in contemplation of the testator’s formation of a domestic partnership with the domestic partner. The next exception would be if the will expresses the intention that it is to be effective notwithstanding any subsequent marriage or domestic partnership. The final exception that would disqualify a surviving domestic partner or spouse from taking would be if the testator provided for the spouse or domestic partner by transfer outside the will and with the intent that the transfer be in lieu of a testamentary provision which is evidenced by the decedent’s statements or intent. All of these scenarios would disqualify a surviving domestic partner or spouse from taking under this statute, however, there may be another resolution under the NJ Elective Share Statute which is discussed in my other recent blog.
New York Legislature Proposes New Bill Banning Non-Compete Agreements
The New York Legislature is set to make another attempt to ban non-competes for all but highly compensated individuals. At the end of the 2023 legislative session, the New York Legislature passed a bill that would have banned non-compete agreements for all employees regardless of wage or income level. Governor Kathy Hochul vetoed this bill while expressing her support for a more limited ban stating that she wanted to “strike a balance” between protecting middle-class and low-wage workers and “allowing New York’s businesses to retain highly compensated talent.”
On February 10, 2025, New York State Senator Sean Ryan introduced a new bill (S4641) that would ban non-compete agreements that responds to some of Gov. Hochul’s criticisms of the previous bill.
The Proposed Ban Remains Very Broad
Similar to the previous bill, the definition of “non-compete agreement” is incredibly broad. The bill purports to apply to “any agreement, or clause contained in any agreement, between an employer and a covered individual that prohibits or restricts such covered individual from obtaining employment, after the conclusion of employment with the employer.” Based on this definition, the bill could be interpreted to apply to forfeiture-for-competition, garden-leave, and other similar covenants used to protect competitive interests in addition to traditional non-competes.
Despite the broad definition of “non-compete agreement,” the bill also retains some exceptions from the previous bill. Specifically, the bill permits agreements that: (a) establish a fixed term of service and/or exclusivity during employment; (b) prohibit disclosure of trade secrets; (c) prohibit disclosure of confidential and proprietary client information; or (d) prohibit solicitation of clients of the employer. Notably, the bill is silent on whether employee non-solicitation agreements will remain enforceable.
New Scope of Covered Employees
While the previous version of the non-compete bill did not exclude any individuals from coverage, this bill excludes highly compensated employees. The bill applies to health related professionals and any person “other than a highly compensated individual who, whether or not employed under a contract of employment, performs or has performed work or services for another person on such terms and conditions that they are, in relation to that other person, in a position of economic dependence on, and under an obligation to perform duties for, that other person.” The term “highly compensated individual is defined as “any individual who is compensated at an average annualized rate of cash compensation … equivalent to or greater than [$500,000] per year.” The term “health related professional” includes physicians, physician assistants, chiropractors, dentists, perfusionists, veterinarians, physical therapists, pharmacists, nurses, podiatrists, optometrists, psychologists, occupational therapists, speech pathologists, audiologists, and mental health practitioners.
Sale of Business Exception Included
The bill also includes an explicit carve-out for non-compete agreements entered in the context of a sale of a business. The new bill does not prohibit “the inclusion and enforcement of non-compete agreements or other similar covenants in the sale of the goodwill of a business or the sale or disposition of a majority of an ownership interest in a business by a partner of a partnership, a member of a limited liability company … or any such person or entity owning fifteen percent or more ownership interest in a business.”
One of the major criticisms of the previous bill was that it did not include such a carve-out.
Mandatory Notice Requirement & Choice of Law Restrictions
The bill would also add a few additional compliance requirements. First, the bill mandates that employers inform employees of their “protections and rights” under the non-compete ban by conspicuously posting a notice to be developed by the New York Department of Labor. Second, the bill would prohibit choice-of-law/choice-of-venue provisions that “have the effect of avoiding or limiting” the non-compete ban for covered individuals who lived or were employed in New York for at least 30 days before the termination of their employment, including “individuals who worked remotely in another state but who reported to a New York worksite or office or who reported to a New York-based supervisor.”
A Clarified Private Right of Action Remains
The new version of the bill would permit a covered individual to bring a civil action for violations of the proposed ban on non-compete agreements within two years of when (1) the non-compete agreement was signed, (2) the covered individual learned about the non-compete agreement, (3) when the employment or contractual relationship is terminated, or (4) when the employer takes steps to enforce the non-compete agreement. A court would have jurisdiction to void the non-compete agreement at issue, enjoin the conduct of any entity seeking to enforce a void non-compete, award compensatory damages/damages for lost compensation, award attorneys’ fees and costs, and order the payment of up to $10,000 in liquidated damages for each covered individual or health related professional.
No Retroactive Effect
Finally, the bill retains the provisions indicating that it would only apply prospectively. The bill states that it would go into effect 30 days after becoming law and would be applicable to contracts entered into or modified on or after the effective date.
Key Takeaways
There are still several steps that need to be met before this bill becomes law. At the time of writing, the bill has not been voted out of committee. That said, there is clearly political will in Albany to curb the use of non-compete agreements. Employers should stay informed about the status of this bill and review the restrictive covenants they have in place to determine what impact the bill would have on such agreements if passed.
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Minnesota Department of Labor and Industry Proposes Rules on Statewide Earned Sick and Safe Time Law
The Minnesota Department of Labor and Industry (MNDOLI) recently issued proposed rules for governing Minnesota’s Earned Sick and Safe Time Law (ESST). The proposed rules are open for public comment through April 2, 2025.
Quick Hits
The Minnesota Department of Labor and Industry issued proposed rules stating that employees anticipated to work over 50 percent in Minnesota in an accrual year would accrue earned sick and safe time leave (ESST) for all hours worked despite location.
The proposed rules would allow employers to “advance” ESST hours.
The proposed rules also clarify that employees have a choice to use paid ESST or take unpaid and “unprotected” leave, and that employers may not require employees to use ESST.
The proposed rules are open for public comment through April 2, 2025.
Definitions
The proposed rules define “Accrual Year,” “Qualifying Purpose,” and “Work Day.” Namely, a “work day” means a consecutive period of time not greater than twenty-four hours.
Accrual Year
The Minnesota ESST law requires employers to designate and notify employees of the accrual year. Under the proposed rules, “[i]f an employer fails to designate and clearly communicate the accrual year to each employee … the accrual year is a calendar year.” The proposed rules would require employers to “provide a revised written notice” to affected employees if the accrual year changes before the change takes effect and “[i]f an employee has not received timely revised written notice … then the employee’s designated accrual year remains unchanged, unless the employee agrees otherwise.”
Hours Worked
Location of hours worked: The proposed rules would allow employees to accrue ESST as follows:
If the employer anticipates that an employee will work more than 50 percent of his or her hours for that employer in Minnesota in an accrual year, then all hours worked would count toward accrual of ESST regardless of the employee’s location.
If the employer anticipates the employee will work 50 percent or less of his or her hours for that employer in Minnesota in an accrual year, then only the hours worked in Minnesota would count toward the employee’s ESST accrual.
If there is a change in circumstances during the accrual year (e.g., change in location or duties) and the employee is working more than 50 percent in Minnesota in the accrual year or 50 percent or less in Minnesota in the accrual year, then the employer would be required to apply the applicable accrual when the change occurs.
For this section only, a teleworking employee would be considered working in the state where the employees teleworks.
Indeterminate shifts: Under the proposed rules, an employer would be required to deduct an employee’s ESST for an indeterminate length accordingly:
If a replacement worker is used to cover the employee’s shift, the hours worked by the replacement worker;
If no replacement worker, but similarly situated employees, then either:
the average hours worked of the other similarly situated employees who worked the same shift for which the employee used ESST; or
the greatest hours worked by a similarly situated employee who worked the shift for which the employee used ESST.
If no replacement worker and no similarly situated employees, then the hours worked in the most recent similar shift of an indeterminate length worked by the employee.
Time Credited and Increments of Accrual
Processing and crediting accrual: Under the proposed rules, employers would be required to credit accrued ESST by the end of the pay period. ESST would be “accrued” when the employer processes and credits the time to the employee at the end of each pay period.
Increment of time accrued: The proposed rules clarify that employers would not be “required to credit employees with less than hour-unit increments of [ESST].”
Rehire: The proposed rules also clarify that “[a]n employee rehired by the same employer within 180 days of separation is entitled to a maximum reinstatement of 80 hours of previously accrued but unused” ESST, unless law, policy, contract, or other authority requires a greater amount.
Accrual and Advancing Methods
Advancing hours: The proposed rules would allow employees to “advance” ESST hours. In other words, “[w]hen an employee begins employment, an employer is permitted to advance [ESST] to an employee based on the number of hours the employee is anticipated to work for the remaining portion of the accrual year and calculated at no less than the rate required in” Minn. Stat. § 181.9446(a), provided an employer need not advance over forty-eight ESST hours (unless law, policy, contract, or other authority requires a greater amount). However, if the advanced amount were less than the amount the employee would have accrued based on the actual hours worked for the rest of the accrual year, the employer would be required to provide more ESST to make up the difference within fifteen days of the actual accrued amount surpassing the advanced amount.
Changing methods: The proposed rules clarify that employers can “change methods” (i.e., switch from accrual to frontloading and vice versa) so long as the employer communicates the change to employees in writing and the change does not take effect until the first day of the next accrual year. If an employer fails to provide adequate notice, the prior accrual method remains in effect unless the employee agrees otherwise.
No additional accrual necessary: The proposed rules clarify that if an employer is frontloading ESST, the employee would not also accrue ESST under the accrual method.
Employee Use
The proposed rules would give employees the right to use ESST and prohibit employers from requiring employees to use ESST. However, if an employee chooses not to use ESST, the absence would not be protected by the ESST law.
Employee Misuse of ESST
The proposed rules address ESST misuse by clarifying that an employee’s use of ESST for a non-ESST covered reason would not be protected by the ESST law. The proposed rules would allow employers to “demand reasonable documentation from an employee when there is a pattern of misuse … for a claimed unforeseeable use,” notwithstanding the timeline in Minn. Stat. § 181.9447(3)(a). Misuse is defined to include an employee routinely using ESST the day immediately before or after a weekend, vacation, or holiday; or using increments of ESST in less than thirty minutes at the start of a scheduled shift. The proposed rules further specify that employers would be barred from denying an employee ESST based on earlier misuse or the employer’s suspicion that the employee may misuse ESST.
More Generous Sick and Safe Time Policies
The Minnesota ESST law requires paid time off and other paid leave provided to employees over the minimum amount required under the ESST law for absences from work due to personal illness or injury (but not including short-term or long-term disability or other salary continuation benefits) to meet or exceed the minimum standards and requirements under the ESST law other than Minn. Stat. § 181.9446 (i.e., ESST accrual). The proposed rules clarify this would only apply “when the leave is being used for a qualifying purpose.”
ICE Enforcement Actions on Campus
Among the many changes imposed by the new Trump administration, colleges and universities can add one more possible scenario to their list; federal agents appearing on campus to conduct immigration enforcement activities. On January 21, the U.S. Department of Homeland Security (“DHS”) rescinded Biden-era guidance designating colleges and universities as “protected areas” for purposes of immigration enforcement and have conducted at least one arrest on university property.
Immigration enforcement is generally governmental agency activity conducted by the U.S. Immigrations and Customs Enforcement (“ICE”), and their actions may include surveillance, interviews, searches, unexpected visits, identify and arrest actions, and arrests. While immigration activities were limited on or near colleges campuses and other protected areas – such as schools, medical centers, and social services centers – by the previous administration, they are no longer constrained to avoid enforcement in certain areas[1] under the current administration. Thus, university counsel and campus law enforcement should be prepared for these activities to occur on campus.
University counsel and campus law enforcement must know – and advise their campus communities – that federal law prohibits interfering with ICE campus related activity and operations. Universities and officers must comply with requests and inquiries related to criminal matters and certain legally authorized court issued process and warrants, and individuals and/or institutions cannot delay, obstruct, impede, or otherwise actively interfere with federal immigration enforcement operations. Any conduct that negatively impacts ICE operations that amounts to obstruction is illegal, and could expose college and university staff and employees, including faculty and students to federal legal liability.
However, state law also applies to the aforementioned government activity. In Massachusetts, for example, campus law enforcement are prohibited from detaining an individual based on civil immigration process or solely on ICE or a designee’s request. Other states may have other laws that apply to campus law enforcement’s interaction with ICE: for advice specific to your state, contact your Hunton lawyer.
University counsel and campus law enforcement may be exposed to DHS and ICE’s enforcement actions on campus in various circumstances. ICE agents may appear with a court-issued judicial search warrant, administrative warrant, or in an investigative capacity with or without a warrant or advance notice. Immigration officers may also continue to be present on campus for regulatory enforcement site visits or to attempt to meet students who are on F-1, J-1, or other similar visas. In addition, many universities and colleges sponsor employees for H-1B visas and permanent residence. Because USCIS still conducts site visits to H-1B sponsors, school officials need to be aware that these may increase and they should be prepared for such visits.
Hunton labor and immigration attorneys offer advice, counsel and training to campus law enforcement, staff and counsel to know their rights and obligations, and help prepare them for the possibility of government action. Please call your Hunton lawyer to learn more.
[1] Enforcement at or near houses of worship is still limited by court order.
California – Not Independent Now And Most Likely Not Independent Ever
I have seen the line “Independence now, independence forever!” attributed to Daniel Webster but I have been unable to locate the line in any of the texts cited as the source. I have also seen a longer quotation attributed to John Adams:
Before God, I believe the hour has come. My judgement approves this measure, and my whole heart is in it. All that I have, and all that I am, and all that I hope in this life, I am now ready here to stake upon it. And I leave off as I began, that live or die, survive or perish, I am for the Declaration. It is my living sentiment, and by the blessing of God it shall be my dying sentiment. Independence now, and Independence for ever!
Here in California, the Secretary of State has announced that the proponent of a new independence initiative has been cleared to begin collecting petition signatures. The Attorney General’s official title and summary for the measure is as follows:
REQUIRES FUTURE VOTE ON WHETHER CALIFORNIA SHOULD BECOME INDEPENDENT COUNTRY. INITIATIVE STATUTE. If enacted, this measure places the following question on November 2028 ballot: “Should California leave the United States and become a free and independent country?” If at least 50% of registered voters participate in that election, and at least 55% vote “yes”, it would constitute “a vote of no confidence in the United States of America” and “expression of the will of the people of California” to become an independent country, but would not change California’s current government or relationship with the United States. Creates commission to report on California’s viability as independent country. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: Around $10 million dollars in one-time election-related costs and to form the new commission on national sovereignty and independence. Around $2 million in annual state costs to operate the commission.
Note that the initiative must surmount two very high hurdles. First, the proponent must collect signatures of 546,651 registered voters (5% of the total votes cast for Governor in the November 2022 general election) in order for the measure to become eligible for the ballot. Next, the specified vote must be obtained. Even if these hurdles should be overcome, that won’t be the day the California says “goodbye”. Rather, the initiative requires that a commission study California’s viability as an independent country.
Fourth Circuit Temporarily Allows DEI-Related EOs to Continue
As we previously reported, on March 3, 2025, the Maryland District Court denied Defendants’ motion to stay the preliminary injunction in National Association of Diversity Officers in Higher Education v. Trump, preventing the federal government from enforcing several DEI-related clauses in its recent Executive Orders. The court held that the Government had not shown a likelihood of success on the merits and that both the balance of harms and the public interest weighed against the stay. In addition, the court declined to limit the scope of the injunction to actions involving only Plaintiffs and their members, holding that the severity of the constitutional violations at issue justified the nationwide scope of the injunction.
However, on March 14, 2025, the Court of Appeals for the Fourth Circuit stayed the preliminary injunction pending the outcome of the Government’s appeal, which will allow implementation of the DEI-related Executive Orders to continue until the court makes a final ruling on the injunction. The circuit court found that the Government had shown a strong likelihood of success on the merits under Nken v. Holder, 556 U.S. 418, 426 (2009). In concurring opinions, Judges Diaz and Harris expressed concerns over the lack of definition given to “DEI or its component terms” and the potential for overbroad agency enforcement of the Executive Orders. Judge Rushing, in a separate concurrence, raised “serious questions” about the ripeness of Plaintiffs’ complaint, as the district court relied on evidence of how agencies “are implementing or may implement” the Executive Orders to grant the preliminary injunction.
Trump Administration Initiates Major Changes for NEPA Reviews
The Trump Administration is initiating major changes to reduce NEPA burdens, including an interim final rule to repeal the longstanding White House Council for Environmental Quality (CEQ) NEPA regulations and CEQ guidance directing federal agencies to update their agency-specific NEPA regulations and procedures to prioritize efficiency and certainty. These actions implement directives from the President’s Executive Order (EO) 14154, Unleashing American Energy, to expedite and simplify the federal permitting process to unleash energy dominance through efficient federal permitting. These changes may lead to more focused reviews and help accelerate federal permitting, although there is likely to be uncertainty in the implementation of NEPA in the near term as agencies work to update their regulations and procedures.
Background
NEPA established CEQ and authorized CEQ to “make recommendations to the President” and “develop and recommend to the President national policies to foster and promote the improvement of environmental quality.” 42 U.S.C. § 4344(3)-(4). NEPA provides no express authority to CEQ to issue binding NEPA regulations or requirements, or to take other regulatory action. In 1977, President Carter issued EO 11991, directing CEQ to “issue regulations to the Federal agencies for the implementation of the procedural provisions” of NEPA. Relying on the Carter EO, since 1978, CEQ has had in place regulations that set forth a framework for implementing NEPA. The CEQ NEPA regulations have been amended several times, including in 2020 by the first Trump Administration, and in 2023 and 2024 by the Biden Administration. Many federal agencies have issued their own NEPA regulations and procedures, some of which supplement and build on CEQ’s regulations.
Two recent federal court decisions have called into question CEQ’s authority to issue NEPA regulations. In a recent D.C. Circuit decision, Marin Audubon v. FAA, a split panel held that CEQ’s NEPA regulations are ultra vires (beyond CEQ’s authority to issue). In Iowa v. CEQ, the U.S. District Court for the District of North Dakota set aside CEQ’s NEPA Phase II regulations that were promulgated by the Biden Administration in 2024, relying on the same rationale as Marin Audubon Society.
President Trump’s Unleashing American Energy EO revoked the 1977 Carter EO, directed CEQ to propose rescinding CEQ’s NEPA regulations, and directed CEQ to provide guidance on implementing NEPA.
Interim Final Rule Removing CEQ NEPA Regulations
On February 25, 2025, CEQ published an interim final rule removing all CEQ NEPA regulations from the Code of Federal Regulations. 90 Fed. Reg. 10610 (Feb. 25, 2025). The interim final rule implements President Trump’s directive to CEQ to remove its NEPA regulations from the CFR by April 11, 2025. The interim final rule provides that the basis for the repeal is that CEQ’s regulations were issued at the direction of the 1977 Carter EO that President Trump has now revoked, President Trump has directed in the Unleashing American Energy EO that CEQ propose rescinding its NEPA regulations, and no other authority exists for maintaining CEQ’s NEPA regulations. The interim final rule also cites to the recent decisions in Marin Audubon and Iowa v. CEQ.
The interim final rule invites public comment with a 30-day comment period ending on March 27, 2025, and takes effect on April 11, 2025.
CEQ Guidance to Federal Agencies on Implementing NEPA
On February 25, CEQ also issued guidance to federal agencies to assist with NEPA implementation. The guidance emphasizes the need to “expedite permitting approvals and meet deadlines,” and “prioritize efficiency and certainty over any other policy objectives that could add delays and ambiguity to the permitting process.” Federal agencies must revise their NEPA implementing procedures (or establish such procedures if they do not yet have any) to expedite permitting approvals and for consistency with NEPA. While these revisions are ongoing, agencies should continue to follow their existing practices and procedures for implementing NEPA consistent with the text of NEPA, EO 14154, and the new CEQ guidance.
The guidance makes clear that agencies should not delay pending or ongoing NEPA analyses while undertaking regulatory revisions, and should apply their current NEPA implementing procedures with any adjustments needed to be consistent with NEPA, as amended by the Fiscal Responsibility Act in 2023. It also recommends that agencies consider “voluntarily relying on” CEQ’s regulations, particularly the 2020 CEQ regulations, even though CEQ’s regulations are being repealed.
For purposes of revising their NEPA regulations and procedures, the guidance directs that federal agencies should:
Develop transparent, clear and predictable procedures for review of project sponsor-prepared EAs and EISs and prioritize project sponsor prepared documents for expeditious review;
Consider only a reasonable range of alternatives that are technically and economically feasible and that meet the purpose and need of the proposed action;
Analyze reasonably foreseeable effects of the proposed action, consistent with NEPA, which does not employ the term “cumulative effects;”
Exclude analysis of environmental justice;
Ensure consistency and predictability, by:
delineating the sequence of major decision points;
identifying actions and decisions not subject to NEPA at a threshold stage;
including specific criteria for and identification of the typical classes of action that qualify for categorical exclusions (CEs) or require EAs or EISs;
establishing how agencies will reevaluate and supplement EAs and EISs;
identifying lead, joint lead, cooperating and participating agencies;
establishing protocols for engaging with State, Tribal, and local governments;
establishing protocols for public involvement;
discussing when programmatic NEPA documents may be appropriate; and
including procedures for concluding the NEPA process.
While developing or revising the NEPA procedures, agencies must consult with CEQ, and all proposed and final procedures must be submitted to the Office of Management and Budget for a significance determination and possible interagency review.
The Road Ahead
There is likely to be uncertainty in the implementation of NEPA in the wake of these changes. The interim final rule is likely to be challenged by states and eNGOs, although the recent federal district court decisions in Marin Audubon Soc’y v. FAA and Iowa v. CEQ may provide a sound basis for the interim final rule. While federal agencies are in the process of updating their NEPA regulations and procedures, agencies are likely to continue implementing their existing NEPA procedures provided they are consistent with the NEPA statutory language.
Rescinded Guidance: Unpacking NLRB Acting General Counsel Cowen’s Policy Overhaul
In one of his first acts in his new role, National Labor Relations Board (NLRB) Acting General Counsel William B. Cowen rescinded dozens of general counsel memoranda issued by his predecessor, former General Counsel Jennifer Abruzzo, as part of a reshaping of policy priories at the NLRB under the Trump administration. Here is a comprehensive breakdown of all of the rescinded memoranda and their impact.
Quick Hits
The new NLRB acting general counsel tapped by President Donald Trump rescinded twenty-nine prior general counsel memoranda, most of which were issued by his predecessor who served during the Biden administration.
The rescinded memoranda included guidance on major labor issues, such as remedies, the legality of noncompete agreements and other restrictive covenants, mandatory employer meetings, and the status of college athletes.
In Memorandum GC 25-05, issued on February 14, 2025, Acting General Counsel Cowen rescinded twenty-nine prior general counsel memoranda (GC memos) and tabbed some for review and potential rescission. The memorandum further outlined his commitment to supporting NLRB regional offices by providing further guidance on the optimal allocation of NLRB resources.
In a statement announcing GC 25-05, the acting general counsel acknowledged the increasing backlog of cases, noting that it has reached an unsustainable level: “The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing,” he said.
Here is a list of the rescinded general counsel memoranda with a summary of the topics covered.
Rescinded Memoranda
GC 21–02 “Rescission of Certain General Counsel Memoranda”
GC 21-02 set forth the rescission of multiple GC memos issued by former General Counsel Peter Robb that were allegedly inconsistent with current policies and Board law or no longer necessary. The rescinded GC memos include guidance on handbook rules, motions to intervene by decertification petitioners, duty of fair representation charges, and deferral under Dubo Manufacturing Company.
GC 21–03 “Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines”
GC 21-03 expanded the scope of protected concerted activity (PCA), considering actions, even if taken by a single employee, as protected if they were clearly related to broader workplace concerns and representative of a collective interest. The memorandum took the position that concerted discussions about workplace conditions, wages, job security, health and safety, and racial discrimination, are inherently PCA, even if these activities are not explicitly connected to immediate workplace concerns, involve only initial conversations among employees, or involve only one person speaking, and others merely listening.
GC 21–04 “Mandatory Submissions to Advice”
GC 21-04 was the first issued by former General Counsel Abruzzo and served as a roadmap for her intent to depart from her predecessor’s priorities and target cases and initiatives from the NLRB under President Trump’s first term, which overruled NLRB precedent during the Obama administration.
GC 21–08 “Statutory Rights of Players at Academic Institutions (Student–Athletes) Under the National Labor Relations Act”
GC 21-08 argued that the term “student–athlete” is misleading and should be replaced with “players at academic institutions” because college athletes meet the definition of “employee” under the NLRA.
GC 22–06 “Update on Efforts to Secure Full Remedies in Settlements (Revised Attachment)”
GC 22-06 authorized and encouraged the NLRB regional offices to seek judgments to force employers to comply with the specific terms of settlement agreements in unfair labor practice (ULP) cases.
GC 23–02 “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights”
GC 23-02 addressed electronic monitoring, including tracking movements, recording conversations, and monitoring computer activity. The memorandum contended such activities could deter employees from engaging in protected concerted activities. The memorandum also addressed concerns about algorithmic management systems that could be used to unfairly discipline or disadvantage employees based on data collected through monitoring, potentially impacting their ability to exercise their rights under Section 7 of the National Labor Relations Act (NLRA).
GC 23–04 “Status Update on Advice Submissions Pursuant to GC Memo 21–04”
In GC 23-04, former General Counsel Abruzzo outlined fifteen issues that she wanted the NLRB regional offices to submit to Advice, including the scope of PCA, strikes, remedies, information requests, and expanding the NLRA’s coverage.
GC 23–05 “Guidance in Response to Inquiries about the McLaren Macomb Decision”
GC 23-05 attempted to clarify the Board’s February 2023 McLaren Macomb decision, which found that nondisparagement and confidentiality provisions in severance agreements were unlawful, interpreting the decision to apply retroactively to agreements already signed and to mean that claims would not be time-barred as long as an employer maintains or enforces such terms.
GC 23–08 “Non–Compete Agreements that Violate the National Labor Relations Act”
GC 23-08 declared that the “proffer, maintenance, and enforcement” of noncompete agreements and other restrictive covenants in employment contracts and severance agreements violate the NLRA. The memorandum explained the former general counsel’s position that noncompete agreements are overbroad in violation of Section 8(a)(1) to the extent they “reasonably tend to chill employees” from engaging in protected NLRA Section 7 activity.
GC 24–04 “Securing Full Remedies for All Victims of Unlawful Conduct”
GC 24-04 directed regions to “seek full make-whole remedies for all employees harmed as a result of an unlawful work rule or contract term,” not just those explicitly named in a ULP charge. The memorandum explained the former general counsel’s position that the NLRB should not only require employers to remove unlawful work rules and contract terms but also seek to address the lingering effects of the rule or term in the workplace.
GC 24–05 “Section 10(j) Injunctive Relief”
GC 24-05 outlined the implications of a 2024 Supreme Court of the United States decision that established a uniform standard for seeking Section 10(j) injunctions. The memorandum also stated the former general counsel’s intent to seek injunctive relief.
GC 24–06 “Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act” (and Attachment)
GC 24-06 addressed how educational institutions could provide necessary information to unions representing student workers while still protecting student privacy. It also included a template consent form corresponding to the NLRB’s initiatives outlined in GC 24–06.
GC 25–01 “Remedying the Harmful Effects of Non–Compete and ‘Stay–or–Pay’ Provisions that Violate the National Labor Relations Act.”
GC 25-01 identified “stay-or-pay” provisions that require employees to remain with their employer for a specific period of time or repay certain costs as potentially unlawful. The memorandum further set forth the former general counsel’s framework for assessing the lawfulness of such provisions.
GC 25–02 “Ensuring Settlement Agreements Adequately Address the Public Rights at Issue in the Underlying Unfair Labor Practice Allegations”
GC 25-02 set forth the importance of ensuring that settlement agreements in ULP matters adequately address public rights and provide effective relief for victims. It emphasized the former general counsel’s commitment to rejecting private settlements that fail to address the financial and coercive effects of ULPs on noncharging parties and the workforce as a whole. The memorandum also encouraged the regional offices to vigorously object to allegedly inadequate private settlements.
Rescinded Memoranda Pending Further Guidance
GC 21–05 “Utilization of Section 10(j) Proceedings”
GC 21-05 addressed the utilization of Section 10(j) injunctions to protect employee rights during union activities and prevent remedial failure in ULP cases. It outlined the procedures for seeking injunctions and emphasized the need for timely action to preserve the status quo and the efficacy of Board orders, particularly in cases involving discharges during organizing campaigns, violations during certification periods, and other critical situations.
GC 21–06 “Seeking Full Remedies”
GC 21-06 instructed the regional offices to seek “the full panoply of remedies available” in ULP cases.
GC 21–07 “Full Remedies in Settlement Agreements”
GC 21-07 directed the regional offices to craft settlement agreements that “ensure the most full and effective relief” available.
GC 22–01 “Ensuring Rights and Remedies for Immigrant Workers Under the NLRA” (English and Spanish)
GC 22-01 set forth the policies and procedures to protect the rights of immigrant workers under the NLRA. The memorandum emphasized the need for safe engagement with the NLRB, the provision of immigration relief for witnesses, and robust remedies against employer abuses, including seeking Section 10(j) injunctive relief in cases involving immigration-related threats or retaliation. It also highlighted the importance of interagency collaboration with the U.S. Department of Homeland Security (DHS) to strengthen deconfliction procedures and relief for witnesses and victims of ULPs.
GC 22–02 “Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns”
This memorandum directed regional offices to seek Section 10(j) injunctive relief to prevent irreparable harm to employees during union organizing campaigns. The former general counsel also directed regions to take prompt action against unlawful threats or coercion by employers to protect Section 7 rights.
GC 22–03 “Inter–agency Coordination”
This memorandum focused on strengthening collaboration between the NLRB and other federal agencies, such as the U.S. Department of Labor (DOL), U.S. Equal Employment Opportunity Commission (EEOC), and DHS, to improve enforcement of worker protections under the NLRA.
GC 22–05 “Goals for Initial Unfair Labor Practice Investigations”
GC 22-05 set forth new goals and procedures for the timely processing of initial ULP investigations. The memorandum set a goal of reducing the average case processing time to ninety-one days or fewer and introduced a revised Impact Analysis system to manage case investigations, with specific target times for distinct categories of cases. It also highlighted the importance of maintaining high–quality investigations while ensuring timely resolution of cases. Additionally, it outlined the circumstances under which cases could be placed in abeyance and the documentation required for such decisions.
GC 23–01 “Settling the Section 10(j) Aspect of Cases Warranting Interim Relief”
GC 23-01 outlined the approach for securing interim settlements in Section 10(j) cases to enhance the effectiveness of remedies for violations of employee rights. The memorandum encouraged regional offices to seek interim settlements promptly and reduce the need for district court litigation. The memorandum further highlighted the importance of securing interim relief, such as reinstating alleged victims of discrimination or agreeing to bargain, pending the final resolution of the administrative case by the NLRB.
GC 23–07 “Procedures for Seeking Compliance with and Enforcement of Board Orders”
GC 23-07 set forth procedures for the regional offices to seek compliance with and enforce Board orders. The memorandum called for the regional offices to timely communicate with respondents regarding their compliance intentions and outlined steps to be taken in the absence of compliance.
GC 24–01 (Revised) “Guidance in Response to Inquiries about the Board’s Decision”
GC 24-01 provided guidance in response to inquiries about the NLRB’s 2023 decision adopting a new union-friendly recognition standard and bargaining orders. The new standard requires employers to either recognize a union that demonstrated majority support, file a petition for election (RM petition) to test the union’s majority support, or await the processing of a petition for a representation election (RC petition). The memorandum further highlighted the importance of prompt resolution of representation questions and outlined the procedures for handling ULP charges related to an employer’s refusal to recognize and bargain with a union. Additionally, it highlighted the effects of ULPs during the critical period, which could lead to the dismissal of election petitions and the issuance of remedial bargaining orders.
GC 25–03 “New Processes for More Efficient, Effective, Accessible and Transparent Casehandling”
GC 25-03 outlined new procedures aimed at improving the overall case management process. The procedures focused on making the process faster, more productive, readily available to all parties involved, and more transparent in how cases are managed.
GC 25–04 “Harmonization of the NLRA and EEO Laws”
Former General Counsel Abruzzo issued GC 25-04 days before President Donald Trump took office and tapped a new general counsel. The memorandum addressed potential employer concerns with complying with both equal employment opportunity (EEO) laws prohibiting discrimination and harassment in the workplace and the NLRA’s protection for employees engaging in PCA, despite potential conflicts between the two. Specifically, the memorandum focused on potential conflicts in the context of (1) employer civility rules, (2) investigation confidentiality, and (3) offensive language and conduct. Despite these potential conflicts, the former general counsel argued that the NLRA and EEO laws are “complementary” and that “both can and should be given full effect.”
Rescinded Memoranda as No Longer Relevant
GC 22–04 “The Right to Refrain from Captive Audience and other Mandatory Meetings”
GC 22-04 asked the Board to find mandatory meetings where employees are forced to listen to employer speech concerning their statutory labor rights, or so-called “captive audience meetings,” are a violation of the NLRA. The memorandum explained the former general counsel’s position that compelling employees to attend such meetings under threat of discipline discouraged them from exercising their right to refrain from listening, which is unlawful. The memorandum further urged the Board to adopt assurances that make clear attendance at such meetings is voluntary to protect both employer free speech rights and employee rights to refrain from listening. In November 2024, the NLRB followed through on GC 22-04, issuing a decision that banned such mandatory employer meetings.
Rescinded to Restore Guidance in GC 18-01
GC 23–03 “Delegation to Regional Directors of Section 102.118 Authorization Regarding Record Requests from Federal, State, and Local Worker and Consumer Protection Agencies”
GC 23-03 provided guidance to the regional offices on a change in procedure to increase the NLRB’s sharing of information in response to records requests from federal, state, and local worker and consumer protection agencies pursuant to Section 102.118 of the NLRB regulations. Section 102.118 governs the disclosure of internal NLRB records, including limitations on what information can be shared and under what circumstances. In GC 23-02, the former general counsel gave regional directors discretion to answer information requests. Instead, GC 18–01 delegates such authority to the associate general counsel for the Division of Legal Counsel and allows for expedited handling of requests for disclosure of information and testimony in ongoing litigation.
Rescinded Due to COVID-19 No Longer Being a Public Health Emergency
GC 21–01 “Guidance on Propriety of Mail Ballot Elections, under Aspirus Keweenaw, 370 NLRB No. 45 (2020)”
Former NLRB General Counsel Peter Robb, who served during President Trump’s first term, issued GC 21-01 to provide guidance on the circumstances under which a mail-ballot election can occur due to the COVID-19 pandemic. The memorandum outlined specific circumstances under which mail-ballot elections were justified, such as mandatory telework status, rising COVID–19 cases, compliance with safety protocols, and other compelling considerations related to the pandemic. However, the Federal Public Health Emergency (PHE) for COVID-19 expired on May 11, 2023.
HHS Secretary Kennedy Directs FDA to Explore Rulemaking to Eliminate Self-Affirmed GRAS Pathway
On March 10, 2025, the Department of Health & Human Services (HHS) Secretary Robert F. Kennedy Jr. announced that he is directing the U.S. Food & Drug Administration (FDA) “to explore potential rulemaking to revise its Substances Generally Recognized as Safe (GRAS) Final Rule and related guidance to eliminate the self-affirmed GRAS pathway.”
This self-affirmation process is built into the 1958 Food Additive Amendments, which amended the definition of a “food additive” and allows certain substances to be exempt from premarket review if they are GRAS based on scientific procedures or history of use in food as determined by qualified experts. Notably, the announcement also specifically references “substances that come into contact with food.”
The announcement is made to promote oversight and transparency. The announcement expresses a commitment to working with Congress to close the GRAS self-affirmation pathway and acknowledges that legislation will be pursued in tandem with potential future rulemaking.
Importantly, there is no immediate effect on ingredients currently marketed, allowing companies to continue their operations without disruption while FDA explores potential rulemaking. Keller and Heckman will continue to monitor developments related to the GRAS program.
The Importance of Bid Protests Amid DOGE’s Reduction Efforts
In light of the Department of Government Efficiency’s (DOGE) recent efforts to reduce the number of federal government contracts and purportedly streamline the procurement process, it has never been more critical for federal contractors to understand the importance of bid protests. These protests can have far-reaching consequences for all parties involved, from the protester to the contract awardee, as well as the procuring agency itself. In this post, we’ll explore why bid protests matter and why both filing them as the protester and intervening in them as the contract awardee are essential in today’s contracting landscape.
Why File a Bid Protest?
For businesses vying for government contracts, a bid protest serves as a mechanism to ensure fairness and accountability in the procurement process. When a company believes that a contract has been awarded unfairly—whether due to an error in the evaluation, the contracting agency’s deviation from the terms of the solicitation, or violations of procurement laws—a bid protest provides an avenue for recourse by allowing review of agency procurement decisions by a neutral third party. Typically, the venues for bid protests are the Government Accountability Office, which is a legislative agency, or the Court of Federal Claims.
With the DOGE working to reduce the number of government contracts overall, sometimes by eliminating entire categories of contracts, according to news reports, the pressure is now mounting for both agencies and contractors to comply with new efficiency goals. Recent anecdotal evidence suggests that agencies are rushing source selection decisions or overlooking details such as regulatory or statutory requirements during the contract awarding process. A well-founded protest, thus, can be a critical check on this trend, ensuring that the contracting process remains fair and transparent and, most importantly, is seen by the public to be fair and transparent.
Filing a bid protest can also protect contractors’ interests and their bottom lines. Protests can force procuring agencies to reassess their award decisions, correct any errors, or even cancel and reissue solicitations, if necessary. This is especially important when the stakes involve large sums of money and long-term business relationships with the government.
Intervening in a Bid Protest as the Contract Awardee
For the business that has been awarded a federal contract, the importance of intervening in a bid protest cannot be overstated. To win a contract, a contract awardee has likely invested significant resources in preparing its proposal and winning the award. A bid protest can be a major disruption, costing time, money, and potentially threatening the award altogether.
As the awardee, it’s crucial to defend the contract award proactively by intervening in the protest process. Protest intervention involves providing evidence and arguments supporting the original decision and ensuring that the contracting agency stands behind the contract award. The ability to intervene and respond to a protest effectively can help prevent unnecessary delays, financial losses, and reputational damage to the awardee’s company.
Moreover, intervening allows the awardee to help the agency maintain the integrity of the award process. Given the DOGE’s emphasis on reducing federal spending and streamlining processes, as well as preventing waste, fraud, and mismanagement, defending a contract award becomes even more critical, as the government may be more inclined to cancel or alter awards in the face of a protest if it perceives the possibility of inefficiencies or errors in the process when there might, in fact, be no such inefficiencies or errors.
The Role of Bid Protests in a Reduced Government Contracting Environment
With the DOGE’s initiatives to reduce government contracts and enhance efficiency, bid protests play a more significant role than ever. While the goal of reducing the number of contracts may be aimed at streamlining government operations and improving efficiency, it also introduces a risk that contract awards could be rushed or mishandled.
Bid protests ensure that the contracting process is not compromised by efficiency measures that do not conform to existing statutory or regulatory requirements. They provide an essential safeguard against arbitrary decision-making and preserve the integrity of the procurement process by guaranteeing the absence of conflicts. By allowing contractors to challenge awards that seem unfair or improperly handled, the protest system upholds transparency and fairness, helping prevent the loss of taxpayer dollars and encouraging healthy competition in government contracting.
Furthermore, protests give agencies a chance to reevaluate their decisions, improving the overall quality of the contracting process. In a time of reduced contracts, when agencies may feel the pressure to limit their procurement activity for political reasons, this reexamination ensures that every contract awarded is justified, fairly assessed, and in the best interest of the government and taxpayers.
Conclusion
Bid protests serve as a critical element of the government procurement process, offering a vital check and balance for both contractors and agencies. Whether filing a protest as the protester or intervening as the contract awardee, these actions are essential in ensuring fairness, transparency, and integrity in the procurement system, particularly as DOGE seeks to streamline and reduce the number of contracts awarded.
In an environment of reduced government contracting, bid protests are more than just a tool for contesting award decisions—they are an opportunity to improve the system, protect businesses, and uphold the principles of fairness and accountability. Contractors must remain vigilant and informed about the bid protest process, whether they are defending their award or challenging one, as it can have significant long-term implications for their business and the government’s contracting landscape as a whole.
USCIS Issues Regulation Requiring Alien Registration
On March 12, 2025, USCIS issued an Interim Final Regulation (IFR) designating a new registration form to comply with statutory alien registration and fingerprinting provisions. The IFR goes into effect on April 11, 2025.
Under current law, with limited exceptions, non-U.S. citizens over the age of 14 who remain in the United States for at least 30 days must apply for registration and to be fingerprinted before the expiration of 30 days. See 8 U.S.C. § 1302(a). (Examples of limited exceptions include visa holders who have already been registered and fingerprinted, through their application for a visa, and A and G visa holders.) The registration requirement also applies to Canadians entering the United States for business purposes for at least 30 days.
Willful failure or refusal to apply to register or to be fingerprinted is punishable by a fine of up to $5,000 or imprisonment for up to six months, or both. 8 U.S.C. § 1306(a). Parents of children in the United States as nonimmigrants must make sure to register their children and appear for fingerprinting within 30 days of turning 14. Canadians entering the United States for at least 30 days are also subject to registration requirements.
Several USCIS forms already are used for compliance with the registration and fingerprints requirement, including:
Form I-94, Arrival-Departure Record
Nonimmigrants including those entering on ESTA and issued I-94W;
Noncitizens paroled into the United States under § 212(d)(5) of the INA;
Noncitizens who claimed entry before July 1, 1924;
Noncitizens lawfully admitted to the United States for permanent residence who have not been registered previously;
Noncitizens who are granted permission to depart without the institution of deportation proceedings or against whom deportation proceedings are being instituted;
Form I-95, Crewmen’s Landing Permit;
Form I-181, Memorandum of Creation of Record of Lawful Permanent Residence;
Form I-485, Application for Status as Permanent Resident – Applicants under §§ 245 and 249 of the INA and § 13 of the INA of Sept. 11, 1957;
Form I-590, Registration for Classification as Refugee-Escapee;
Form I-687, Application for Status as a Temporary Resident, under § 245A of the INA;
Form I-691, Notice of Approval for Status as a Temporary Resident – noncitizens adjusted to lawful temporary residence under 8 CFR §§ 210.2 and 245A.2;
Form I-698, Application to Adjust Status from Temporary to Permanent Resident – applicants under § 245A of the INA;
Form I-700, Application for Status as Temporary Resident – applicants under § 210 of the INA; and
Form I-817, Application for Voluntary Departure under the Family Unity Program
Individuals with these forms do not need to register again.
All others who are required to register will need to do so as of the effective date of the IFR, April 11, 2025. This includes the following groups:
Aliens who are present in the United States without inspection and admission or inspection and parole and have not yet registered (have not yet filed a registration form designated under 8 CFR § 264.1(a) and do not have evidence of registration under 8 CFR § 264.1(b)).
Canadian visitors who entered the United States at land ports of entry and were not issued evidence of registration (e.g., Form I–94).
An alien, whether previously registered or not, who turns 14 years old in the United States and therefore must register within 30 days after their 14th birthday.
Individuals not otherwise registered can do so using a new option, Form G-325R Biographic Information (Registration), which can be done online after creating a MyUSCIS account. Each noncitizen must have a unique account. Submission of Form G-325R will trigger scheduling a Biometrics Services Appointment at a USCIS Application Support Center. Currently, this option does not cost anything, but DHS is soliciting comments on a possible $30 fee. Once registration is complete, the individual will be able to download and print proof of registration, which they are required to carry with them at all times.