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 October 11, 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:

COVID-19 Vaccine Employer Mandate Updates
Other General COVID-19 Updates
Labor and Supply Chain Disruptions
Reconciliation Spending Measure/Infrastructure Package Updates

The U.S. Federal Government was closed on Monday, in observance of the traditional Columbus Day holiday.  Both chambers of the U.S. Congress were scheduled to be in recess this week.  However, the House of Representatives reconvened on Tuesday and approved S. 1301, a measure that temporarily extends the Treasury Department’s borrowing authority until at least 3 December, a date that coincides with the expiration of the short-term funding for the Federal Government and a possible Government shutdown.

COVID-19 Vaccine Employer Mandate Updates.  The White House announced last week that it would spend $1 billion to increase access to the COVID-19 home tests, with the ultimate goal of making 200 million available each month by the end of the year.  However, testing experts are warning it may not meet demand in the United States, which is expected to soar this fall and winter, as the Occupational Safety and Health Administration (OSHA) finalizes an emergency temporary standard (ETS) that would require companies with more than 100 workers to ensure any unvaccinated employees undergo testing at least weekly.

Ahead of its self-imposed deadline of November 22, the Pentagon is working to vaccinate hundreds of thousands of civilian employees against the coronavirus.  Notably, the Department has no system to verify civilian contractors that have been inoculated, but is working to create one.  There are an estimated 770,000 civil servants at the Defense Department, with the Defense Department reporting just 42 percent of them, or approximately 319,000, are fully vaccinated.  The White House reportedly plans to release vaccination guidance for hundreds of thousands of federal contractors on Friday.

Acting OSHA Administrator Jim Frederick said during an October 7 webinar hosted by the National Safety Council that the agency is working “expeditiously” on the ETS.  However, he provided no timeline on the release of the rule.  He acknowledged that the “expedited nature” of an ETS “unfortunately” does not allow for public comment before its publication.  He shared the ETS essentially serves as a proposed rule and would allow for comments that could guide the drafting of a permanent standard, should the agency choose to issue one.  Frederick stated:

We know that the pandemic will continue to evolve, and we’ll continue to monitor vaccination trend data, variants of the virus and other factors that will guide our continued efforts to ensure workers are protected from the virus while they’re on the job.”

Meanwhile, reports this week indicate the ETS has been submitted to the White House’s Office of Information and Regulatory Affairs (OIRA).  OIRA is expected to limit stakeholder input in an effort to expedite the rule and meet the Administration’s goal of maximizing workforce vaccinations in the near term.  Once OIRA approves the ETS, OSHA will likely post an unofficial version of the text on its website, before The Federal Register publishes the final standard.  As previously reported, legal challenges will be forthcoming, with several Republican State Attorney Generals stating they intend to challenge the ETS, once published.

Elected Republican officials at the state-level also continue to challenge the White House’s authority to issue a vaccine mandate.  On Monday, Texas Governor Greg Abbott (Republican) issued an executive order prohibiting any entity, including private businesses, from imposing COVID-19 vaccination requirements on state residents, “including an employee or consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”  While the Governor noted vaccines remain the best defense against the virus, he stated vaccination should be voluntary.  He characterized President Biden’s vaccine mandates as Federal overreach.  Governor Abbott also sent a message asking the chief clerk of the state House and the secretary of the state Senate to codify the mandate in a bill, noting his order would be rescinded when the Republican-controlled Texas legislature passes the bill.

In Florida, Florida state Senator Keith Perry (R-Gainesville) pre-filed Senate Bill 452 on Wednesday, a measure that would encode in state statute the state Department of Health’s (DOH) Rule 64DER21-12, which authorizes it to issue rules governing “control of preventable communicable diseases” in schools and bans school districts from requiring students wear masks unless their parents agree.  The bill also would bar cities and counties in Florida from imposing mandatory mask and vaccine mandates, and it would prohibit any local Florida government from making it a condition of employment to be vaccinated against COVID-19.   The bill was filed for the 60-day 2022 legislative session that begins January 11.  Meanwhile, Florida state House Representative Anthony Sabatini (R-Howey-in-the-Hills) has pre-filed a different bill (HB 75), which bans Florida local government agencies from imposing mask and vaccine mandates.

Other General COVID-19 Updates.  On Monday, Merck & Co. and Ridgeback Biotherapeutics requested emergency use authorization (EUA) from the Food and Drug Administration (FDA) for molnupiravir, a COVID-19 antiviral drug.  The FDA decision could come in a matter of weeks, with the FDA saying on Friday its advisory committee will meet on 30 November to discuss the EUA request.  Separately, a FDA vaccine advisory panel on Thursday unanimously endorsed the use of Moderna’s COVID-19 booster shot for the elderly and younger people whose jobs, underlying health or other factors elevate their risk.  The FDA vaccine advisory panel also approved the J&J COVID-19 vaccine booster for all adult recipients of the initial J&J dose on Friday.  Meanwhile, a National Institutes of Health study published on Wednesday reflected the best booster for the J&J COVID-19 vaccine may be either the Pfizer/BioNTech or Moderna vaccines.

Amazon announced in a blog post on Monday that it would allow many tech and corporate employees to continue working remotely indefinitely, as long as they can commute to the office when necessary. Previously, Amazon had said that most employees were expected to work in the office at least three days a week after offices were slated to reopen in January 2022.

Labor and Supply Chain Disruptions.  President Biden focused on global transportation supply chain challenges on Thursday, meeting with senior officials and stakeholders to discuss collective efforts to address supply chain bottlenecks.  In remarks to the media, he announced the Port of Los Angeles was joining the Port of Long Beach in committing to operating 24 hours a day, 7 days a week, to help eliminate some of the trade blockages.  The International Longshore and Warehouse Union (ILWU) announced its members are willing to work the extra shifts to help clear existing backlogs.  These two ports account for 40 percent of containers transiting to the United States.

President Biden also shared that large companies – such as FedEx, UPS, The Home Depot, Walmart, Target and Samsung – would also use expanded night hours to help move more cargo off the dock.  These announcements are intended to signal to other businesses along the transportation supply chain – railways, trucking, and warehouses – that there is demand to move additional cargo at off-peak hours, with the White House pushing to harmonize a 24/7 schedule for the American transportation supply chain.  Meanwhile, officials in Washington have begun warning American citizens that Christmas holiday gifts may be delayed, due to supply chain disruptions.

Reconciliation Spending Measure/Infrastructure Package Updates.  Reports suggest Senate Democrats may slash funding for paid leave in the reconciliation package to $300 billion.  A funding level of $300 billion is likely enough to cover three to four weeks of leave, but not the 12 weeks that President Joe Biden proposed.  Speaker of the House Nancy Pelosi (D-California) said Tuesday morning that Democrats will first turn to addressing “timing” changes in the reconciliation package, meaning, cutting the length of certain spending programs, as they work to pare the Build Back Better bill down from $3.5 trillion to around $2 trillion.

At a Wednesday event in Washington, AFL-CIO President Liz Shuler reversed the unions’ previous stance, calling for the bipartisan infrastructure bill to be approved by Congress in tandem with Democrat’s Build Back Better bill.  She stated:  “We need to get both of these jobs bills passed today, ASAP.”  Shuler added:

Really, the agenda that we voted on in the election in 2020 is housed in that Build Back Better investment.  So we want to see what we voted for pass the finish line, and we just need to see some results.”

The Build Back Better bill includes some provisions that would make it easier for workers to organize and it would bolster the National Labor Relations Board, including empowering it to conduct union elections online.

Employment Law Worldview