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 17, 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 Updates
- COVID-19 Updates
- Notable Labor Department Developments
- Updating Mergers Guidelines
The U.S. Congress was in session this week. Democrats in the U.S. Senate fell short in their effort to approve voting rights legislation. Facing unified Republican opposition, Senate Majority Leader Charles Schumer (D-New York) sought to change the filibuster rules to allow for passage of the legislation by a simple majority vote. Consistent with their previously announced positions, Senators Joe Manchin (D-West Virginia) and Kyrsten Sinema (D-Arizona) voted against the proposed change. As a result, the proposed legislation was not put to a vote.
U.S. President Joe Biden participated in a two-hour long press conference on January 19, touting his Administration’s first year accomplishments before engaging in a Q&A. He also spotlighted the Bipartisan Infrastructure Law, saying:
We’ll be creating better jobs for millions of people modernizing our roads, our bridges, our highways, our ports, our airports — everything from making clean water; lead — removing lead pipes that every American can turn on — every American can turn on a faucet and drink clean water — urban and rural and suburban communities.”
The President further acknowledged the need to get inflation under control and to break up his Build Back Better legislation into pieces that might have a better chance of passage in the Senate
Next week, the U.S. House of Representatives is not in session, as House lawmakers will have a district work week. The U.S. Senate is also in recess next week. Both chambers of Congress return to session in Washington on February 1. Democratic Congressional Leaders indicated this week that an Omnibus spending bill to fund the U.S. Federal Government for the remainder of the fiscal year is likely to come together before current funding runs out on February 18.
Federal Vaccine Mandate Updates. On January 21, a Federal judge in Texas issued a nationwide injunction against enforcement of the federal contractor vaccine mandate, ruling that the Biden Administration could not require Federal Government employees to be vaccinated. U.S. District Judge Jeffrey Brown said in an order that the vaccine mandate is “a bridge too far,” noting Congress has a role in requiring “millions of federal employees to undergo a medical procedure as a condition of their employment.” The U.S. Department of Justice has already appealed Friday’s ruling, sending its request to the U.S. Court of Appeals for the Fifth Circuit.
Chairman Bobby Scott (D-Virginia) and Workforce Protections Subcommittee Chairwoman Alma Adams (D-North Carolina) sent a letter to President Biden and Department of Labor Secretary Marty Walsh on January 15, urging the Administration to reverse its plans to remove a COVID-19 emergency workplace safety standard for health care workers. The Emergency Temporary Standard (ETS), issued by the Biden Administration in June 2021, requires health care facilities to take necessary steps to protect health care workers from COVID-19. On December 27, the Labor Department announced its intentions to withdraw the ETS while it worked on a permanent safety standard, which the Democratic lawmakers noted could take months or years to complete and implement. In a separate letter dated January 20, Senate Health, Education, Labor, and Pensions (HELP) Committee Chair Patty Murray (D-Washington) echoed her House colleagues in urging Labor Secretary Walsh and the Occupational Safety and Health Administration (OSHA) to issue a permanent standard to protect health care workers and to take immediate action to secure strong workplace protections for all workers.
COVID-19 Updates. On January 21, U.S. residents can now order free at-home coronavirus tests from the Federal Government by phone (800-232-0233), after the White House opened a hotline on Friday to accept test orders. This expands access for individuals that may not have access to the Internet, after the White House launched the www.covidtests.gov website, where people can enter their mailing address and order four rapid, at-home tests. The White House has said tests are expected to ship in about seven to 12 days after they are requested.
On January 15, despite a 30-fold increase in on-board COVID cases on cruise ships, the U.S. Centers for Disease Control and Prevention (CDC) did not extend its COVID restrictions on the cruise industry that were set to lapse that day. This came after the Agency recommended just two weeks ago against cruise ships for even for vaccinated passengers, with the Agency’s official guidance stating:
[E]ven fully vaccinated travelers may be at risk for getting and spreading COVID-19 variants.”
A preliminary study in Israel reflected a fourth shot of COVID-19 vaccine boosts antibodies to even higher levels than the third jab but it is not enough to prevent Omicron infections. An Israeli medical official was quoted as saying,
We know by now that the level of antibodies needed to protect and not to get infected from Omicron is probably too high for the vaccine, even if it’s a good vaccine.”
A study published on January 17 in Nature Genetics identified a genetic risk factor associated with the loss of smell after a COVID-19 infection – a genetic locus near two olfactory genes is associated with COVID-induced loss of smell and taste. A locus is the fixed position of a gene on a chromosome.
Meanwhile, Yale School of Public Health researchers have developed an easy-to-use clip-on device that can detect low levels of coronavirus. The “Fresh Air Clip,” a 3D-printed air sampler measuring about one inch in diameter, collects samples of air on a film inside the badge-shaped device. The researchers are looking at how best to scale application in workplaces, schools and with community members.
Notable Labor Department Developments. On January 21, the U.S. Department of Labor announced an initiative aimed at improving job quality throughout the country. The “Good Jobs” initiative, led by the Labor Department, will provide critical information to workers, employers and government entities as they seek to improve job quality, and create access to union jobs – free from discrimination and harassment – for all workers and job seekers. Secretary Walsh unveiled the initiative at the U.S. Conference of Mayors in a keynote address that day.
According to the Labor Department, the Good Jobs initiative will focus on:
- Providing workers with easily accessible information about their rights, including the right to bargain collectively and form a union;
- Engaging employer stakeholders as partners to improve job quality and workforce pathways to good jobs; and
- Supporting partnerships across federal agencies, and providing technical assistance on grants, contracts and other investments intended to improve job quality.
On January 19, the Labor Department’s Office of Federal Contract Compliance Programs and the U.S. Equal Employment Opportunity Commission launched the “Hiring Initiative to Reimagine Equity” (HIRE). HIRE is a multi-year collaborative effort that will engage stakeholders in expanding access to good jobs for workers from underrepresented communities and help address key hiring and recruitment challenges. The Labor Department noted that HIRE would identify strategies to remove hiring barriers that limit opportunity along the lines of race, color, ethnicity, gender, LGBTQ+ status, religion, disability, age and veteran status.
Updating Mergers Guidelines. On January 18, leaders of the U.S. Department of Justice and Federal Trade Commission announced they would update how they review mergers, which will include new guidelines for digital markets, startup acquisitions and how deals affects employment. The agencies cited:
Recent evidence indicates that many industries across the economy are becoming more concentrated and less competitive – imperiling choice and economic gains for consumers, workers, entrepreneurs and small businesses.”
Interested parties have until March 21 to submit comments, including on the following labor-related item:
- Impact of monopsony power, including in labor markets: The agencies seek input on how to address the issue of buyer power in more detail in the guidelines. Labor markets are a key example of buyer power, and the agencies seek information regarding how the guidelines should analyze labor market effects of mergers.