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 July 26, 2021.
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:
- US Economy Update
- COVID-19 Updates
- Biden Administration Labor Leadership Updates
- Final Rule to Rescind March 2020 Joint Employer Rule
- Readout of the President’s Meeting with Legislators on Immigration
- Commerce Secretary Spotlights Caregiving Services Challenges
- Legislation to End Forced Arbitration in the Workplace Reintroduced
- EEOC Voting Transparency Challenged
- Northern Triangle Grant Funding Opportunity
- OSHA-Shipbuilding Alliance Program Announced
- Upcoming Congressional Hearing
Both chambers of the US Congress were in session this week. On Thursday, the US House of Representatives approved its seven-measure spending package (“minibus”) that includes funding for the following Departments and Agencies: (1) Labor, Health and Human Services and Education; (2) Agriculture and Food and Drug Administration; (3) Energy and Water; (4) Interior and Environment; (5) Military Construction and Veterans Affairs; (6) Transportation, Housing and Urban Development; and (7) Financial Services.
US Economy Update. On Thursday, July 29, the US Department of Commerce Department released a report that estimated the national’s gross domestic product rate was 6.4 percent for the second quarter of 2021. While this was lower than the eight percent rate that many economists had predicted, the miss was attributed to global supply chain challenges. A 3.4 percent increase was also noted for core inflation, which excludes food and energy. The day before, the US Federal Reserve affirmed it would maintain its key short-term interest rate at near zero to keep short-term borrowing costs low. Federal Reserve Chairman Jerome Powell said at a press briefing Wednesday afternoon that inflation readings have been distorted by temporary supply shortages related to the economy’s swift reopening. Meanwhile, it remains to be seen whether the spreading Delta COVID-19 variant will make American consumers restrict their movements and possibly spend less in the third quarter.
COVID-19 Updates. Despite previously saying boosters are not needed, Dr. Anthony Fauci, White House Chief Medical Advisor, stated on Sunday that Americans who are immune-compromised (e.g., transplant patients, cancer chemotherapy, and autoimmune diseases that are on immunosuppressant regimens) may end up needing COVID-19 vaccine booster shots, amid the Delta variant surge. Meanwhile, Pfizer/BioNTech reported last Friday that the United States had purchased 200 million more doses of their vaccine to help with pediatric vaccination, as well as possible booster shots.
On Monday, July 26, Secretary of Veterans Affairs (VA) Denis McDonough announced his Department would be the first federal agency to mandate COVID-19 vaccinations for its Title 38 VA healthcare personnel. This includes physicians, dentists, registered nurses, and others working in VA facilities that treat veterans.
Also on Monday, the US Department of Justice and Health and Human Services (HHS) issued guidance on how “long COVID” can be a disability under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act. Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said of the action:
The Department of Justice will vigorously enforce the ADA and other federal civil rights laws to ensure that as the nation responds to, and recovers from, COVID-19, and that those with disabilities are full and equal partners in that recovery.”
On Tuesday, July 27, the Centers for Disease Control and Prevention (CDC) recommended vaccinated Americans should resume wearing masks indoors in areas of high COVID-19 transmission. The CDC also recommended indoor masking for all teachers, staff, students and visitors inside schools from kindergarten to 12th grade, regardless of vaccination status.
US President Joe Biden announced on Thursday, July 29, additional steps to get more Americans vaccinated. US Federal Government employees and onsite contractors will be asked to attest to their vaccination status. Those not fully vaccinated will be required to wear a mask on the job no matter their geographic location and they must maintain physical distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirements, and be subject to restrictions on official travel.
Among other things, President Biden also directed the US Department of Defense (DOD) to look into how and when they will add COVID-19 vaccination to the list of required vaccinations for members of the military domestically and overseas. The Pentagon responded quickly, saying it was examining the President’s order and adding:
In accordance with the guidance the President issued today, all military and civilian DoD personnel will be asked to attest to their vaccination status. Personnel unable or unwilling to do that will be required to wear a mask, physically distance, comply with a regular testing requirement and be subject to official travel restrictions.”
Biden Administration Labor Leadership Updates. On July 27, President Biden announced his intent to nominate Ms. Lisa Gomez to serve as Assistant Secretary of Labor for Employee Benefits Security. Ms. Gomez is currently a partner with the law firm Cohen, Weiss and Simon LLP and the Chair of the Firm’s Management Committee.
On July 28, the Senate confirmed Ms. Gwynne Wilcox, by a vote of 52-47, and Mr. David Prouty, by a vote of 53-46, to serve as Members of the National Labor Relations Board (NLRB).
Final Rule to Rescind March 2020 Joint Employer Rule. On Thursday, July 29, the US Department of Labor announced a final rule to rescind an earlier rule, “Joint Employer Status under the Fair Labor Standards Act,” that took effect in March 2020. The Department argues that rescinding this rule will ensure more workers receive minimum wage and overtime protections of the Fair Labor Standards Act. The final rule becomes effective on September 28, 2021. While House Education & Labor Committee Chairman Bobby Scott (D-Virginia) welcomed the Labor Department’s action, Education & Labor Committee Republican Leaders Virginia Foxx (R-North Carolina) and Fred Keller (R-Pennsylvania) criticized the move to undo the previous Administration’s “common-sense” rule that established a four-factor test evaluating whether a business exhibits significant and direct control over an employee when determining joint employment status.
Readout of the President’s Meeting with Legislators on Immigration. On Thursday, July 29, the White House released a brief summary of President Biden’s meeting with Democratic Members of Congress to discuss immigration reform and the Deferred Action for Childhood Arrivals (DACA) policy that the US District Court for the Southern District of Texas determined “is illegal” in mid-July. According to the White House:
President Biden and Vice President Harris expressed their strong support for including immigration reform in upcoming reconciliation legislation to enable Dreamers [DACA recipients], TPS [Temporary Protected Status] recipients, farmworkers and essential workers to gain long-awaited pathways to citizenship.”
Should Senate Democrats seek to add any immigration provisions to the budget reconciliation legislation they are drafting, the Senate Parliamentarian will have the last word on whether the provisions run afoul of the Byrd Rule. A “Byrd Dropping” is a provision that has only “an incidental effect on revenues.” The Parliamentarian concluded that scores of provisions conflicted with the rule the last time Democrats brought a reconciliation bill to the floor.
Commerce Secretary Spotlights Caregiving Services Challenges. In an opinion piece published by Barron’s on Friday, US Commerce Secretary Gina Raimondo noted that while employers are urging workers to return to the office, those who are parents and caregivers may be reluctant to do so due to concerns for their children or aging parents. She characterized the “care infrastructure” as “in tatters,” saying: “Without adequate care services, we cannot expect everyone who is a parent or caregiver to fully participate in the workforce.” The Secretary called for “sweeping investments in the care economy.” She touted President Biden’s Build Back Better agenda and stated: “It’s time for our federal government to create a safety net that extends beyond the largest corporations and allows small businesses, restaurants, and even sole proprietors to access affordable, reliable care services.”
This week, the Commerce Department also shared Commerce Deputy Secretary Don Graves hosted a virtual roundtable discussion earlier this month with minority-owned business leaders to address the critical need to create and invest in a care economy, especially for minority-owned businesses.
Legislation to End Forced Arbitration in the Workplace Reintroduced. On Thursday, House Education & Labor Committee Chairman Scott and House Judiciary Committee Chairman Jerrold Nadler (D-New York) introduced the Restoring Justice for Workers Act, legislation to end forced arbitration clauses and protect workers’ ability to pursue work-related claims in court. The bill, which has only Democratic support, would overrule the 2018 Supreme Court decision in Epic Systems v. Lewis that allowed employers to continue to require workers to sign forced arbitration clauses.
EEOC Voting Transparency Challenged. On Monday, July 26, House Education & Labor Committee Ranking Member Foxx sent a letter to Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows urging her to reinstate the EEOC’s practice of making members’ voting records public. She stated:
Since President Biden designated you as EEOC chair on January 20, 2021, the agency has not posted information online or otherwise made public either matters receiving a Commission vote or the voting records of individual commissioners. As a Member of Congress, every vote I take in committees and on the House Floor is recorded and quickly posted online for all to see…There is no reason for the Commission to hide its votes from the public, who commissioners were appointed to serve, and it is troubling that you have chosen not to make public any votes the Commission has taken under your chairmanship.”
Northern Triangle Grant Funding Opportunity. On Friday, July 30, the Labor Department announced its intent to award up to $20 million in grant funding to address workers’ rights and improve working conditions in the Central American countries of El Salvador, Guatemala and Honduras (also known as “the Northern Triangle”). This includes up to $7 million to address child labor, forced labor and other unacceptable work conditions of work among the Northern Triangle’s vulnerable populations, including indigenous communities and people of African descent.
OSHA-Shipbuilding Alliance Program Announced. On Tuesday, July 27, the Labor Department’s Occupational Safety and Health Administration (OSHA) and the Shipbuilders Council of America and its associate members signed a two-year alliance to protect shipbuilding workers in the Mid-Atlantic region from workplace safety and health hazards. Further details on the program can be viewed here.
Upcoming Congressional Hearing. On August 3, the Senate Health, Education, Labor, and Pensions (HELP) Committee is set to hold a business meeting to consider the following labor-related nominations and legislation:
- Nomination of David Weil to be the Administrator of the Wage and Hour Division of the Department of Labor
- Nomination of Javier Ramirez to be the Director of the Federal Mediation and Conciliation Service
- U.S. 1486, the Pregnant Workers Fairness Act.