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 November 29, 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:
- November Jobs Report
- COVID-19 Updates | Winter Plan Announced
- Federal Vaccine Mandate Legal Challenges Update
- Notable Labor Department Developments
- Other Notable COVID-19 Developments
- Labor Department Leadership Updates
- Stronger Labor Provisions Sought
Both chambers of the U.S. Congress were in session this week, after a week-long recess for the Thanksgiving holiday. Late on Thursday, the U.S. Senate approved an 11-week stopgap spending bill in a 69-28 vote, sending the measure to the President’s desk and averting a possible Federal Government shutdown at midnight on Friday. The Continuing Resolution (CR) keeps Federal Government funding at levels set almost a year ago, under the previous Administration.
Prior to advancing the CR, the Senate voted on an amendment put forward by Senators Roger Marshall (R-Kansas) and Mike Lee (R-Utah) that would have blocked the Biden Administration’s vaccination requirements for U.S. businesses, the Pentagon and the Federal workforce. That amendment failed to advance after a 48-50 vote under a simple majority threshold. Republican Senators John Thune (South Dakota) and Bill Hagerty (Tennessee) missed the vote. For the remainder of the legislative calendar year, lawmakers have a number of issues to address, such as the Fiscal Year 2022 National Defense Authorization Act (NDAA) and Democrats are still pushing to approve their social spending bill, the Build Back Better Act.
November Jobs Report. On Friday, the U.S. Department of Labor released its November Jobs Report, reflecting the U.S. economy added 210,000 jobs in November. Economists had anticipated there would be 550,000 jobs added. The November report also revised October’s report to reflect 546,000 jobs added from the 531,000 previously reported. The unemployment rate dropped to 4.2 percent in November, from 4.6 percent in October.
COVID-19 Updates | Winter Plan Announced. On Thursday, December 2, U.S. President Joe Biden unveiled a Federal Winter COVID-19 Plan at the National Institute of Health, as more cases of a new coronavirus variant – Omicron, which first emerged in South Africa – were diagnosed across the country. The President noted the “action plan” includes five elements:
- expanding the nationwide COVID-19 vaccine booster campaign;
- launching new family vaccination clinics to make it easier for children and parents to get vaccinated in one place, along with new policies to keep children in school instead of quarantining them at home;
- making more readily available free at-home tests and having them covered by private insurance plans;
- increasing “Surge Response Teams” to respond to increased cases in regions around the country; and
- accelerating efforts to vaccinate the rest of the world, along with revising international travel rules for people coming to the United States.
With respect to the last item, the Centers for Disease Control and Prevention (CDC) issued an amended order, “Requirement for Proof of Negative COVID-19 Test or Recovery from COVID-19 for All Air Passengers Arriving in the United States,” on Thursday. The amended order and accompanying documents are available here. Importantly, the requirement is for all air passengers two years or older and is for any flight departing to the United States from a foreign country at or after 12:01am EST (5:01am GMT) on December 6, 2021. It does not include requirements for testing after U.S. entry or any quarantine in the United States.
The FAQs for passengers are instructive and clarify some of the more confusing aspects of the order. The one-day requirement means that if your first flight in your trip to the United States departs on a Wednesday, you can get the test at any time on the Tuesday the day before – it is not a 24-hour requirement. The new requirement also accepts proof of having contracted COVID within 90 days of the flight and having fully recovered before the flight, as attested to by the positive COVID test and a letter from a doctor/health specialist before you travel.
A White House fact sheet on the President’s Winter Plan (released ahead of the President’s remarks) reflected:
The President will call on businesses to move forward expeditiously with requiring their workers to get vaccinated or tested weekly.”
It also noted:
“60 percent of businesses report they are moving forward with implementing a program to ensure their workers are either vaccinated or tested on a weekly basis, and the U.S. Chamber of Commerce and more than 100 leading public health experts have encouraged businesses to not delay in implementing these protective measures.”
However, in his remarks, President Biden did not raise this issue. He instead said:
And while my existing federal vaccination requirements are being reviewed by the courts, this plan does not expand or add to those mandates — a plan that all Americans, hopefully, can rally around.”
Federal Vaccine Mandate Legal Challenges Update. On Tuesday, November 30, the Biden Administration was blocked from enforcing two mandates requiring millions of American workers be vaccinated against COVID-19. U.S. District Judge Terry Doughty in Monroe, Louisiana, temporarily blocked the Centers for Medicare & Medicaid Services (CMS) from enforcing its vaccine mandate for health care workers until the court can resolve legal challenges. This stay applies nationwide, except in 10 states where the CMS was already prevented from enforcing the rule due to a prior order from a Federal judge in St. Louis. Judge Doughty wrote in his opinion,
There is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency.”
The mandate for health care workers would have required first shots by December 6, with fully vaccination required by January 4.
Separately, U.S. District Judge Gregory Van Tatenhove in Frankfort, Kentucky, blocked the Biden Administration from enforcing a regulation that new government contracts must include clauses requiring that contractors’ employees be vaccinated. This decision applies to three states that had filed the lawsuit challenging the Federal Contractor and Subcontractor mandate – Kentucky, Ohio and Tennessee; this suit is one of at least 13 legal challenges nationwide against this mandate.
Meanwhile, the Sixth Circuit Court of Appeals based in Cincinnati – which was selected to preside over litigation related to the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) that requires companies with at least 100 employees to mandate COVID-19 vaccinations or submit to weekly testing and mask requirements – has set a briefing schedule that runs through December 10. Last week, OSHA requested the Sixth Circuit to dissolve or modify the stay imposed by the Fifth Circuit Court of Appeals. The Sixth Circuit is unlikely to take further action until approximately mid-December.
Notable Labor Department Developments. Amid the legal challenges, on November 30, OSHA extended the public comment period for the mandatory COVID-19 vaccination or testing ETS to January 19, 2022. The Federal Register published the public comment period extension on December 3.
On December 1, the Labor Department announced a Notice of Proposed Rulemaking seeking public comment on its proposal to modify the methodology used to determine the hourly adverse effect wage rates (AEWRs) for the H-2A program. AEWRs are the minimum hourly wage rates the Department has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment, so that the wages of workers in the United States similarly employed will not be adversely affected. Interested parties have until January 31, 2022, to submit comments.
On December 2, the Labor Department extended the public comment period on its Advance Notice of Proposed Rulemaking for heat injury and illness prevention in outdoor and indoor work settings to January 26, 2022. OSHA does not currently have a heat-specific standard to protecting workers facing these conditions. The 30-day extension allows the agency more time to gather more information and data.
Also on December 2, the Labor Department announced it had launched an online portal through which Federal Government contractors and subcontractors can certify compliance with annual Affirmative Action Program requirements. Covered Federal contractors and subcontractors may register on the portal beginning February 1, 2022. The portal’s certification features will be available beginning on March 31, 2022.
Other Notable COVID-19 Developments. On November 30, the U.S. Food & Drug Administration’s (FDA) Antimicrobial Drugs Advisory Committee (AMDAC) voted 13-10 to approve the use of molnupiravir, an antiviral pill produced by Ridgeback and Merck, in treating COVID-19. Molnupiravir can reduce the relative risk someone will progress to severe disease or death by about 30 percent. To be effective, the pills must be taken within five days of the start of COVID-19 symptoms.
Amid the spread of Omicron, Novavax has yet to file emergency authorization with the FDA for its COVID-19 vaccine, despite having filed regulatory submissions in other highly vaccinated countries, such as Australia, New Zealand, the European Union and the United Kingdom. In August, the company indicated it would prioritize regulatory submissions in countries with urgent needs. Nearing the end of 2021, the company says it is ready to produce 150 million doses per month, having established a robust global supply chain capable of manufacturing the vaccine across a number of sites around the world.
Meanwhile, reports emerged last week that clinical trial data of the CoVac-1 vaccine – developed and made by academics at the University of Tubingen, in Germany – creates T-cells against COVID-19 that in turn produces a better immune response than the vaccines already in use. Unlike antibodies which decline over time, T-cells have the ability to stay in the bloodstream for several years.
Labor Department Leadership Updates. On December 2, the Senate Health, Education, Labor, and Pensions (HELP) Committee advanced the following nominations:
- Lisa Gomez to serve as Assistant Secretary for the Employee Benefits Security Administration at the Department of Labor by a vote of 12-10;
- James Rodriguez to serve as Assistant Secretary for Veterans’ Employment and Training at the Department of Labor by a voice vote; and
- Susan Harthill to serve as a member of the Occupational Safety and Health Review Commission by a voice vote.
Stronger Labor Provisions Sought. This week, Representative Earl Blumenauer (D-Oregon), Chairman of the House Ways & Means Trade Subcommittee, said he is open to including reauthorization of the Generalized System of Preferences (GSP) program and the Miscellaneous Tariff Bill (MTB) in the bipartisan U.S. Innovation and Competition Act (USICA), if lawmakers include stronger labor and gender-related standards for countries seeking duty-free treatment.
Prior to recessing, Senate Majority Leader Chuck Schumer (D-New York) and House Speaker Nancy Pelosi (D-California) agreed to a conference on the Senate-passed USICA, after Leader Schumer sought to attach the measure to the NDAA. Among other things, the Senate’s USICA provisions include a renewal of GSP, which lapsed at the end of 2020, and major funding for the U.S. semiconductor industry, which is struggling amid supply chain disruptions. Meanwhile, Congressional leaders have yet to indicate a timeline for the China bill conference, leading to concern in the Senate that this could be delayed until 2022, as lawmakers deal with the debt ceiling and other year-end priorities, such as the NDAA.