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 6, 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 Updates
Teacher Unions Press the Administration
TSA Employees Seek Greater Bargaining Rights
U.S.-Mexico High-Level Economic Dialogue Resumes

Both chambers of the U.S. Congress were in recess this week, while some House congressional committees were in Washington for a period of committee work.  Senators return to Washington next week; House lawmakers reconvene the week of September 20.  Meanwhile, the Federal pandemic unemployment programs lapsed on Monday, September 6, coinciding with the nation’s Labor Day holiday.

On Wednesday, September 8, U.S. President Joe Biden spoke of the importance of labor unions, stressing many of the workers deemed “essential” during the pandemic are members of unions.  He argued against the trickle-down economy direction of the country, stating:

[W]orker power is essential to building our economy back better than before — it’s just that basic — to counter corporate power, to grow the economy from the bottom up and the middle out.”

Reconciliation Package Updates.  Senator Joe Manchin (D-West Virginia) reportedly spoke with the White House recently, privately sharing his concerns with the $3.5 trillion Democratic reconciliation package that House congressional committees started drafting this week.  He indicated support for a fraction of the Democrat’s budget proposal.  Specifically the Senator expressed concern with the following Democratic initiatives:  spending $400 billion for home caregivers; extending the enhanced Child Tax Credit, which provides up to an additional $300 per child per month, to 2024; free community college; universal preschool; and child care subsidies.  Senator Manchin is also committed to paying for any new spending with new revenue, which could consequently limit the size of the budget proposal.  On Wednesday, Senate Budget Committee Chairman Bernie Sanders (I-Vermont) rejected Senator Manchin’s calls for a smaller budget proposal, insisting it should remain at $3.5 trillion.

Meanwhile, several House committees worked this week to approve their respective portions of the budget reconciliation package in order to submit them to the House Budget Committee by September 15.  The House Labor & Education Committee began marking-up its portion of the budget proposal on Thursday, including pro-labor provisions – such as those from the Protecting the Right to Organize Act, or PRO Act – that are not expected to survive strict budget reconciliation rules governing the reconciliation process.  The text of the measure unveiled Wednesday would also prohibit classifying workers as independent contractors instead of employees and limit employers from permanently replacing striking workers or locking out workers in certain situations.  The Committee is expected to conclude its mark-up today.

Additionally, along a party-line vote on Thursday, House Ways & Means Committee Democrats approved the creation of a new program that would provide up to 12 weeks of paid family and medical leave in its portion of the reconciliation package.  Notably, differing from President Biden’s paid family leave proposal is the lack of a 10-year phase-in for the program.  Experts estimate this will double the cost of the Congressional Budget Office’s (CBO) $225 billion estimate of the proposed FAMILY Act at.  Republicans characterized the new program as “socialist” and have taken issue with its $500 billion cost.  The program would be routed through the Treasury Department instead of the Social Security Administration.

COVID-19 Updates.  On Thursday, President Biden outlined his Administration’s “six-pronged” strategy to reduce the number of unvaccinated Americans by using regulatory powers and other actions to increase the number of Americans covered by vaccination requirements.  The White House stated on its website:  “[T]hese requirements will become dominant in the workplace.”  The President claimed in his remarks to the nation, “This is a pandemic of the unvaccinated.”  He shared his plan would provide paid time off for most workers in the country to get vaccinated.

President Biden encouraged vaccine mandates for workplaces and schools, issuing new Executive Orders that mandate most Executive Branch employees and Federal contractors and subcontractors be vaccinated.  He said the U.S. Department of Labor is developing mandatory rules requiring private sector employers ensure their workers are vaccinated or submit to coronavirus testing.  The Occupational Safety and Health Administration (OSHA) is drafting the emergency temporary safety (ETS) rule that is expected to require all employers with more than 100 employees to verify their workforce is fully vaccinated or require any unvaccinated workers produce a negative test result “on at least a weekly basis.”

The White House estimates the OSHA ETS rule will affect about 100 million American workers, or two-thirds of the American workforce.  OSHA has authority to issue ETS rules that are effective immediately, if the Agency determines workers are “in grave danger” due to exposures “determined to be toxic or physically harmful or to new hazards.”  ETS rules stay in place for six months and can be challenged in courts.  It remains unclear how quickly OSHA will promulgate the ETS rule.  An Administration official explained to reporters on Thursday that businesses that fail to comply could face fines up to $14,000 per infraction.

President Biden also called on U.S. Governors to mandate COVID-19 vaccinations for all teachers and school employees.  Following the President’s speech, the Los Angeles Unified School District – the nation’s second largest school district – mandated vaccines later that day for students aged 12 and older.  Meanwhile, amid the Delta coronavirus surge, reports early this week indicated 49 U.S. States – except Nebraska – have identified Mu variant infections, which appear to be vaccine resistant.

Shortly after President Biden’s remarks, House Education & Labor Committee Ranking Member Virginia Foxx (R-North Carolina) said of the President’s vaccine mandates:

Biden has no business issuing a burdensome vaccine regulation that will further harm overworked and struggling businessowners. This is a Hail Mary attempt by a president who is failing to ‘crush the virus’ and is now burdening job creators with a rushed and unprecedented regulation. This mandate will subject employers to even more financial penalties if they fail to keep up with the administration’s expensive and ever-changing policies, twisting the knife in our bleeding economy’s back yet again. Inflation is up, jobs are going unfilled, and our president is passing the buck to struggling and overworked businessowners.  Biden isn’t ‘crushing the virus’ – he’s crushing our economy and constitutional rights.”

Several other Republican lawmakers turned to Twitter to question the legality of the President’s vaccine mandates.   Senator Rick Scott (R-Florida) encouraged “America’s job creators – large and small – to challenge this insane ‘order,’” suggesting legal challenges are ahead for the OSHA ETS rule.  Republican House Minority Leader Kevin McCarthy (R-Texas) said:  “Forcing main street to vax or pay a fine will not only crush an economy he’s put on life support—it’s flat-out un-American.”  Representative Dan Crenshaw (R-Texas) questioned the Administration, asking:  “Are you people trying to start a full on revolt?”  Representative Chip Roy (R-Texas) urged businesses affected by the ETS rule to “openly rebel.”   Meanwhile, several Republican Governors quickly said they would seek to challenge the new requirements, including Governors Brian Kemp of Georgia, Kristi Noem of South Dakota, Greg Abbott of Texas, and Doug Ducey of Arizona.

Despite President Biden warning State and local governments against impeding vaccine mandates on Thursday, at least one Republican-controlled State is moving forward with legislative efforts to prohibit employer vaccine mandates.  Thus far, two states have bans on employer vaccine mandates – Montana and North Dakota.  Prior to President Biden’s remarks, Texas Governor Greg Abbott (Republican) announced on September 7 that he is calling a third special legislative session that will, among other things, address whether any state or local governmental entities in Texas can mandate an individual receive a COVID-19 vaccine and, if so, what exemptions should apply to such mandate.  The Texas legislative session convenes on September 20.

Teacher Unions Press the Administration.  The National Education Association (NEA), the nation’s second largest teachers’ union, reportedly worked with the White House to encourage the Centers for Disease Control and Prevention (CDC) to adopt stricter mask guidance issued at the end of July for public schools regardless of vaccination status.  The New York Post reported in May that the American Federation of Teachers influenced the CDC February guidelines on reopening schools.

TSA Employees Seek Greater Bargaining Rights.  The union representing thousands of Transportation Security Agency (TSA) employees is advocating again for expanded bargaining rights amid the Delta variant surge and growing concerns with other emergent COVID-19 strains.  The American Federation of Government Employees (AFGE) reiterated its push for TSA’s inclusion under Title 5, which would give thousands of TSA agents compensation in line with a majority of the Federal workforce, grant them full bargaining rights, and provide whistleblower provisions.

Representative Bennie Thompson (D-Mississippi) introduced H.R. 903 – the Rights for the TSA Workforce Act – in late July that would mandate TSA’s move under Title 5.  The House Homeland Security Committee advanced the measure to the floor in July, where it awaits chamber action.

U.S.-Mexico High-Level Economic Dialogue Resumes.  Deputy Under Secretary of Labor for International Affairs Thea Lee travelled to Mexico from September 1-3, discussing implementation of the U.S.-Mexico-Canada Agreement (USMCA) with various stakeholders.  On Thursday, the U.S. and Mexico resumed the “High-Level Economic Dialogue” (HLED) initially started during the Obama Administration that stalled during the subsequent Administration.  U.S. Trade Representative Katherine Tai, Commerce Secretary Gina Raimondo, Secretary of State Antony Blinken and U.S. Ambassador to Mexico Ken Salazar participated in the forum with their counterparts from Mexico.  The Dialogue focused on four central pillars:  (1) Building Back Together; (2) Promoting Sustainable Economic and Social Development in Southern Mexico and Central America; (3) Securing the Tools for Future Prosperity; and (4) Investing in Our People.

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