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 September 27, 2021.
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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:
- Reconciliation Package Updates
- COVID-19 Vaccine Employer Mandate Updates
- COVID-19 Updates
- New Job Quality Initiative Announced
- U.S.-EU Trade and Tech Council Meeting Recapped
- Worst Forms of Child Labor Annual Report Released
- Mine Workers Safety & Health
- Upcoming Congressional Hearing
Reconciliation Package Updates. Both chambers of the U.S. Congress were in session this week, working to address funding the U.S. Federal Government beyond the end of the current fiscal year –which concluded Thursday, September 30 – and the looming U.S. debt ceiling to prevent a default on American financial obligations. Both chambers approved a Continuing Resolution, which did not address the U.S. debt ceiling issue, on Thursday; U.S. President Joe Biden signed the bill later that evening, averting a Federal Government shutdown. Democrats are still seeking a path forward for addressing the U.S. debt ceiling deadline, which the U.S. Department of the Treasury estimates is October 18.
On Wednesday, Senator Joe Manchin (D-West Virginia) told reporters that he could support a Democratic spending bill, but not $3.5 trillion and not this week. He said further negotiations are necessary, suggesting it could take the rest of this year. Senator Manchin stated:
The child tax credit ends at the end of the year. Everything else goes way into next year and 2023. Do a pause and let’s really take our time to look … and hopefully we’ll get there.”
He also shared his desire to overhaul the 2017 tax bill, suggesting that there is unity among Democrats to address this issue. Senator Manchin added that any new and expanded social programs included “should be means tested,” saying he is opposed to America moving to “an entitlement society.” His comments to reporters came after he released a statement on his position toward the ongoing negotiations. Meanwhile, a memorandum signed by Senator Manchin and Senate Majority Leader Chuck Schumer (D-New York) circulated on Thursday, affirming Senator Manchin would only support a measure that does not exceed $1.5 trillion. Senator Kyrsten Sinema (D-Arizona) also continues to negotiate with the White House, similarly taking issue with the overall price of the package, along with other priorities.
The House was set to vote on Thursday on the Senate-approved $1.2 trillion bipartisan infrastructure package amid threats from progressive Democrats that they would not support the measure. The vote was postponed late on Thursday, with the White House acknowledging more time is needed. Speaker of the House Nancy Pelosi (D-California) indicated Friday morning that she hopes the chamber would vote on the measure yet today. Meanwhile, since the surface transportation authorization lapsed at midnight on Thursday, the U.S. Department of Transportation furloughed about 3,700 Federal employees – a majority from the Federal Highway Administration – on Friday. The pending infrastructure bill would restore funding and authority, if approved by the House.
COVID-19 Vaccine Employer Mandate Updates. Healthcare workers faced deadlines this week in several states, with reports indicating those that refused to get the COVID-19 vaccine have been fired. One in four companies has instituted a vaccine mandate for Americans workers, an increase over the 16-percent from last month. Meanwhile, legal challenges to the vaccine mandate continue to be filed before different jurisdictions. A group of lawsuit plaintiffs, including four Air Force officers and a Secret Service agent, filed a case on September 23, seeking an injunction to block the Biden Administration’s coronavirus vaccination mandates for Federal employees.
On September 29, Republican Members of the Education and Labor Committee, led by Ranking Member Virginia Foxx (R-North Carolina), sent a letter to Department of Labor Secretary Marty Walsh requesting the Occupational Safety and Health Administration (OSHA) suspend work on “the inappropriate, unprecedented, and likely unlawful” emergency temporary standard (ETS), mandating COVID-19 vaccination and testing in the workplace. The letter stated:
After failing to ‘shut down the virus,’ President Biden is now weaponizing the federal bureaucracy to crush American businesses with this rushed and unprecedented OSHA mandate. This scheme not only passes the buck to workers and job creators, but it also creates massive uncertainty, costs, and liabilities for many employers. Small businesses will be particularly harmed by being forced to police vaccine and testing on behalf of the federal government.”
The Republican lawmakers concluded, saying:
OSHA should immediately suspend its work on the ETS. . . . If President Biden or the Department seeks to regulate America’s workplaces, such an extreme, intrusive, disruptive, and likely unlawful mandate should either be proposed through formal notice-and-comment rulemaking to allow for review and scrutiny or be initiated through direct congressional authorization.”
Meanwhile, there is no official timetable for when OSHA plans to release its ETS, though some estimates suggest we may see a release within a month or two.
On September 30, the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) issued guidance to help the public understand when the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule applies to disclosures and requests for information about whether a person has received a COVID-19 vaccine. In its guidance, HHS reiterated that the HIPAA Privacy Rule does not apply to employers or employment records.
COVID-19 Updates. Pfizer Inc. CEO Albert Bourla said on Sunday, September 26, that Pfizer/BioNTech would submit data to the U.S. Food and Drug Administration (FDA) on vaccines for children ages five to 11 within “days, not weeks.” He also confirmed the dosage for young children is one-third that of the vaccine for adults. Reports this week also indicated that Moderna is expected to secure FDA approval for a booster dose of its COVID-19 vaccine, likely at a level that is half the prime doses. Timing on the FDA approval, however, remains unknown.
At least three promising antivirals for COVID-19 are being tested in clinical trials around the world, with results expected as soon as late fall or winter. The antivirals could provide yet another avenue for employees to return to their workplaces. The top contender is a medication from Merck & Co. and Ridgeback Biotherapeutics called molnupiravir. Two others include a candidate from Pfizer, known as PF-07321332, and a candidate produced by Roche and Atea Pharmaceuticals, known as AT-527. So far, only one antiviral drug, remdesivir, has been approved to treat COVID-19; it is given intravenously to patients ill enough to be hospitalized. Merck Chief Executive Robert Davis said this month that the company expects data from its larger phase 3 trials of molnupiravir in the coming weeks; and on Friday, Merck reported positive phase 3 data, saying it would seek FDA emergency use authorization (EUA) as soon as possible. Pfizer launched a combined phase 2 and 3 trial of its product September 1, and Atea officials said they expect results from phase 2 and phase 3 trials later this year.
If approved, Merck officials predict the company could produce more than 10 million courses of therapy by the end of the year. Atea and Pfizer have not released similar estimates. In June, the Biden Administration announced it had agreed to obtain about 1.7 million treatment courses of Merck’s molnupiravir, at a cost of $1.2 billion, if the product receives emergency authorization or full approval. That same month, the Administration said it would invest $3.2 billion in the Antiviral Program for Pandemics, which aims to develop antivirals for the COVID-19 crisis and beyond.
New Job Quality Initiative Announced. On September 29, the U.S. Department of Commerce Secretary Gina Raimondo and Deputy Secretary Don Graves convened national experts to officially launch the Department of Commerce’s new Job Quality Initiative, which seeks to help American employers become more competitive by providing their workers with high quality jobs. Deputy Secretary Graves said of the initiative:
There isn’t a single silver bullet that defines a quality job – it’s all these elements working together in concert. In today’s labor market, companies that provide quality jobs − where people want to work − have a clear competitive advantage. And the first step toward making all our businesses competitive, is clearly defining what ingredients our businesses need to be more attractive to potential employees The Baldrige Excellence Framework has been enabling quality and performance excellence for over thirty years. We will leverage that expertise as we work to develop a widely accepted and broadly applicable Job Quality Framework.”
This fall, the Department will seek input from a diverse range of experts to ensure that the Job Quality Framework reflects the latest research and standards about what constitutes quality employment, which will be used to guide organizations that wish to attract and retain top talent.
U.S.-EU Trade and Tech Council Meeting Recapped. The Office of the U.S. Trade Representative released a brief summary of U.S.-European Union (EU) Trade and Tech Council (TTC) on Wednesday. The TTC discussed four key topics: (1) global trade challenges, (2) artificial intelligence, (3) semiconductors, and (4) data governance and tech platforms. Ambassador Tai emphasized:
[T]he TTC is an important platform for assuring that the United States and the European Union remain global leaders in technology and innovation, projecting our shared democratic values internationally, and protecting fundamental labor rights.”
The TTC also released a joint statement, along with a joint fact sheet that outlines issues the TTC expects to focus on further, including: (1) global trade challenges and addressing non-market, trade distortive practices; (2) semiconductor supply chains; (3) investment screening; (4) export controls; and (5) artificial intelligence.
With respect to labor, the fact sheet reflected (and the joint statement echoed): “We also intend to use our tools to protect workers and labor rights, combat forced and child labor, and consult on relevant trade, climate, and environmental issues.” The TTC also affirmed “robust engagement” with business, thought leaders, labor organizations, non-profit organizations, environmental constituencies, academics, and other stakeholders.
Worst Forms of Child Labor Annual Report Released. On September 29, the Labor Department released its annual report containing Findings on the Worst Forms of Child Labor, which focuses on eliminating child labor in certain U.S. trade beneficiary countries and territories. The Department also released a Better Trade Tool, a new web-based tool that integrates the List of Goods Produced by Child Labor or Forced Labor with international trade data.
Mine Workers Safety & Health. On September 30, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced – for the seventh year in a row – that none of the nation’s 12,000 mining operations met the criteria for its pattern of violations (“POV”) screening, one of the agency’s toughest enforcement tools. MSHA provides mine operators with online tools to help monitor their compliance. This includes the POV Calculator, which informs operators how they rate against the screening criteria and when appropriate corrective actions are needed.
Upcoming Congressional Hearing. Lawmakers will focus next week on this labor-related hearing:
- On October 7, the Senate Health, Education, Labor, and Pensions (HELP) Committee is set to hold a confirmation hearing for Lisa Gomez to serve as Assistant Secretary of Labor for Employee Benefits Security, and Mr. Jose Javier Rodriguez to serve as Assistant Secretary of Labor for Employment and Training.
