From our Capital Thinking blog, our public policy colleague Stacy Swanson shares the latest federal employment law developments in in the legislative and executive branches during the week of January 10, 2022.


This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches during the previous week.

In this issue, we cover:

  • Federal Vaccine Mandate Legal Challenges Update
  • Consumer Price Index
  • COVID-19 Updates
  • Notable Labor Department Developments
  • USMCA Deputies Meeting Readout
  • Labor Department Nominations

The U.S. Congress was in session this week.  U.S. President Joe Biden focused this week on Voting Rights, traveling to Georgia early in the week and meeting with Democratic Senators this week to press them to change the filibuster rules, which would allow them to advance Democratic-led voting right bills over unified Republican opposition.  Senators Joe Manchin (D-West Virginia) and Kyrsten Sinema (D-Arizona) have repeatedly said that they do not support changing the filibuster rules to permit passage of the legislation with a simple majority vote, continuing to frustrate their Democratic colleagues and the White House.

The U.S. Supreme Court issued its highly anticipated opinion on some of the Biden Administration’s vaccine mandates this week, striking down one and upholding another.  President Biden updated the nation this week on his Administration’s efforts to address the Omicron COVID-19 variant surge, announcing some additional steps, while Biden Administration officials testified before a Senate committee on efforts to combat the highly transmissible coronavirus strain.

Federal Vaccine Mandate Legal Challenges Update.  With the Supreme Court having not yet issued its opinion, the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 for employers with 100 or more employees went into effect on Monday, January 10.  This deadline required employers to collect information and document their employees’ vaccination status; draft and distribute a policy consistent with the ETS requirements; and require masking of unvaccinated workers.

However, on January 13, the Supreme Court ruled in a 6-3 decision that OSHA’s ETS represented an overreach by the Federal agency, thereby precluding the Agency from enforcing the rule.  The Court’s conservative majority wrote in an unsigned opinion:

OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

U.S. Secretary of Labor Marty Walsh expressed disappointment with the Supreme Court ruling on the ETS, which would have affected about 84 million workers, with OSHA posting his statement to its ETS webpage.  President Biden also issued a statement of disappointment, noting:

[I]t is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.”

Senator Richard Burr (R-North Carolina), Ranking Member of the Senate Health, Education, Labor and Pensions (HELP) Committee, welcomed the Supreme Court’s decision on the OSHA ETS.  He stated:

As the Court notes, the Biden Administration is attempting to instate a broad public health requirement that far exceeds OSHA’s legal authority and historic precedent.  I’m a huge proponent of encouraging every American who is eligible to get vaccinated and boosted against COVID-19.  Amid supply chain issues and labor shortages, however, the last thing we need to do is place unnecessary pressure on an already strained workforce.  Instead, I hope the Administration will focus on developing a long-term strategy on COVID-19.”

House Ways & Means Committee Ranking Member Kevin Brady (R-Texas) released a statement on the Supreme Court decision striking down the Biden Administration’s vaccine mandate for large employers, stating:

The Supreme Court is right to reject President Biden’s harmful one-size-fits-all vaccine mandate that has already resulted in fewer workers, higher inflation, and worsened vaccine hesitancy.  Forcing compliance on 84 million Americans simply because they work for employers with more than 100 employees was never based on science or the authority of the Executive Branch.  Main Street job creators need greater flexibility to work with their employees to protect their health.”

Further analysis of the Supreme Court action on OSHA’s ETS is available here.

Following the Supreme Court’s decision, General Electric (GE) suspended implementation of the OSHA ETS vaccine-or-test mandate for its employees.  Other employers are reviewing or considering sustaining vaccination or weekly testing policies.  Notably, employers seeking to institute a mandatory vaccination policy could conflict with state laws or executive orders banning or limiting employee proof of vaccination requirements, especially in Republican-controlled states.  Meanwhile, despite the stay on the ETS, OSHA still appears to be moving forward with trying to promulgate a potential permanent rule, accepting public comments that could shape decisions about whether to expand enforcement to smaller employers.

On the same day it struck down the employer mandate, the Supreme Court, in a 5-4 decision, declined to block the CMS Medicare and Medicaid Programs Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (“CMS vaccine mandate”) for health care workers, which had been blocked in 25 states at the beginning of the week and was in effect in the other 25 states.  As a result of the Court’s action, the temporary injunctions issued by the U.S. District Courts for the Eastern District of Missouri and the Western District of Louisiana have been stayed; covered employers in all states should take steps, or continue to take steps, to comply with the CMS vaccine mandate.  CMS has said that workers in all the holdout states, but Texas, will have to receive the shots needed to be fully vaccinated by March 15.  The mandate is on pause in Texas, where a U.S. District Court injunction remains in effect.

Consumer Price Index.  The U.S. Department of Labor reported on 12 January that the consumer price index jumped seven percent last year, the fastest pace since 1982.  The report cited COVID-driven worker shortages and supply-chain bottlenecks as contributing to rising inflation in America.  White House Council of Economic Advisors (CEA) Chair Celia Rouse said of the report in a statement:

[W]e continue to face challenges with prices driven by supply chain disruptions around the world.   Today’s report underscores the importance of the Administration’s work on supply chains and to fight the pandemic here at home and around this world.”

COVID-19 Updates.  On Thursday, January 13, President Biden spoke to Americans amid what some experts are anticipating is the peak of or is nearing the peak of Omicron infections in the country.  The President announced his Administration is moving to procure 500 million additional COVID-19 tests to meet demand around the country, a move that comes after reports that Americans are struggling to find COVID-19 at-home tests.  He also affirmed the Administration is set to roll out a website next week, allowing Americans to order COVID-19 tests that will be shipped to their homes at no charge.  On Friday, the White House released a fact sheet outlining the Administration’s plan for distributing the COVID-19 tests, staring online orders on January 19.

White House COVID-19 Coordinator Jeff Zients assured on Wednesday, January 12, that the Biden Administration has stockpiled 750 million N95 masks for health care workers and first responders.  He also said the Administration is “strongly considering” options to make more high-quality masks available to all Americans.  On Thursday, President Biden confirmed the Administration is moving to provide free high-quality masks to Americans.

On January 13, the Biden Administration required insurance companies and group health plans to cover the cost of over-the-counter, at-home COVID-19 tests, effective January 15.  Insurance companies and health plans are now required to cover eight free over-the-counter at-home tests that are approved by the U.S. Food and Drug Administration (FDA) per covered individual per month.  There is no limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment, including for those who may need them due to underlying medical conditions.

On Tuesday, January 11, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing titled, “Addressing New Variants: A Federal Perspective on the COVID-19 Response.”  Centers for Disease Control and Prevention (CDC) Director Rochelle Walensky and Dr. Anthony Fauci, Director of National Institute of Allergy and Infectious and White House Chief Medical Advisor, fielded questions from bipartisan members of the panel about the state of the resurging pandemic and the Administration’s short- and long-term plans for combating it.  Democrats focused on the “confusion and frustration” around CDC quarantine guidelines and for how long after a COVID exposure or diagnosis, or where and when to get tested.  Other lawmakers focused on data gaps with respect to vaccination rates, testing shortages, and messaging concerns.

Notable Labor Department Developments.  On January 12, the Labor Department announced a funding opportunity as part of the are part of the VETS’ Homeless Veterans’ Reintegration Program for organizations providing training and employing services to veterans to combat homelessness.  The grants will fund projects across the country at a maximum of $500,000 annually, for a total of up to $1.5 million over a three-year performance period of performance.

On January 11, the Labor Department announced its Veterans’ Employment and Training Service would extend its traditional Transition Assistance Program curriculum beyond the active military installations it currently serves to at least 50 locations in at least 20 states to expand their efforts to improve employment-related outcomes in areas where large veteran populations face high rates of unemployment.  The five-year Off-Base Transition Training pilot program begins January 18, and offers ten, two-hour, instructor-led employment skills and workforce development workshops for veterans, including veterans serving currently in the Reserve Component (National Guard and Reserve members), and their spouses.

USMCA Deputies Meeting Readout.  On January 13, the Office of the U.S. Trade Representative released a summary following the conclusion of the first U.S.-Mexico-Canada Agreement (USMCA) Deputies Meeting.   USTR noted the Deputies held substantive discussions on four broad, thematic issues, including:  labor, environment, inclusive trade (including SMEs and competitiveness), and state-owned enterprises.  With respect to labor and competitiveness, USTR noted:

Labor.  The Deputies received updates from the Labor Council and discussed a key obligation in the USMCA—the importance of full implementation of the prohibition of trade in goods produced through forced labor.  The Deputies recognized and embraced the opportunity that the Agreement provides the three countries to be leaders in combatting forced labor globally and to building a truly fair and free trading system.  Through the discussion, Mexico, the United States, and Canada reaffirmed their commitment to collaborate on this critical issue and to fully implement the shared obligations to prohibit the importation of goods produced by forced labor.  The Parties agreed to report concrete and measurable outcomes on implementing this key obligation at the 2022 FTC [the USMCA Free Trade Commission].

. . .

Competitiveness. Following the USMCA Workforce Development Event hosted by the George W. Bush Institute on December 13, 2021 in Dallas, Texas, Deputies agreed to continue this committee’s focus on regional workforce development to further enhance the competitiveness of the region. The three countries pledged to each host follow up events in their respective countries in 2022. They also began discussing possible work on strategies to maintain North American supply chains resiliency in times of emergency.”

Labor Department Nominations.  On January 13, the Senate HELP Committee narrowly advanced Dr. David Weil’s nomination to serve as Administrator of the Wage and Hour Division of the Department of Labor by a vote of 11-10.  The Senate HELP Committee previously voted on Dr. Weil’s nomination in August 2021, failing to favorably report the nomination on an 11-11 vote.  Ranking Member Richard Burr again opposed Dr. Weil’s nomination, stating:

The Biden Administration has re-nominated Dr. Weil despite bipartisan opposition all last year.  This is an individual who seems to have made it his life’s work to shackle innovation, burden small employers, and implement policies that harm workers.”

Dr. Weil’s nomination now advances to the Senate floor for consideration.