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 18, 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 Spending Measure/Infrastructure Package Updates
Fed Reserve Weighs in on Labor Shortages and Inflation
COVID-19 Vaccine Employer Mandate and Health Care Facilities Mandate Updates
Other General COVID-19 Updates
Vice President Promotes Unions
Workplace Protections for Nursing Mothers
WSJ Editorial Board Weighs in on the National Labor Relations Board (NLRB)
Forced Labor Update
FACOSH Nominations Solicited
Labor Department Confirmation Updates

Both chambers of the U.S. Congress were in session this past week. Democrats continue to seek a path forward to secure enactment of the President’s Build Back Better Agenda and the bipartisan infrastructure bill, ahead of a self-imposed end-of-the-month deadline. As talks continue, lawmakers have begun discussing the need for a surface transportation extension, which is set to expire on October 31 and could trigger another furlough of Federal transportation officials.

Reconciliation Spending Measure/Infrastructure Package Updates. At a town hall event in Baltimore on Thursday, U.S. President Joe Biden expressed optimism that Democrats are nearing a deal on the Build Back Better measure that will advance via the reconciliation process without any Republican support. The President confirmed negotiations have whittled down his proposed 12 weeks of paid family leave to “maybe four weeks.” Despite the President’s optimism on the talks, Senator Joe Manchin (D-West Virginia) remains firm there is no timetable for securing an agreement, with Democrats’ pushing to conclude a deal by October 31.

Fed Reserve Weighs in on Labor Shortages and Inflation. On Wednesday, October 20, the U.S. Federal Reserve (“The Fed” or “Fed Reserve”) said supply chain bottlenecks and labor shortages have caused U.S. economic growth to slow down and resulted in inflationary pressures in its “Beige Book” report. The Beige Book is a report on U.S. economic conditions based on surveys carried out of business contacts by the Fed’s 12 regional banks.  The Fed recognized that automobile sales are struggling as manufacturers seek to obtain key components, such as semiconductors and steel. Labor shortages are also contributing to companies charging more or cutting back hours of operation, especially in the service, hospitality and manufacturing sectors.  The Fed also said of the U.S. labor shortages: “Child-care issues and vaccine mandates were widely cited as contributing to the problem.”   

Also on Wednesday, Federal Reserve Vice Chair Governor Randal Quarles spoke about escalating inflation while at the 2021 Milken Institute Global Conference in California. He stated:

The inflation we have experienced so far has been very unusual and largely related to supply constraints associated both with production and distribution problems related to COVID and with a demand shock arising from the unprecedented and rapid reopening of the economy.”

Governor Quarles acknowledged semiconductor chip shortages and labor contributed to some of the inflation.  He said:

[L]abor supply constraints are making it difficult for businesses to keep up with demand. This dynamic will continue to support robust wage growth, putting further upward pressure on prices.”

Governor Quarles, however, also expressed optimism on the inflation situation, saying it would decline “considerably next year from its currently very elevated rate.”

COVID-19 Vaccine Employer Mandate and Health Care Facilities Mandate Updates. A group of 10 Republican Senators sent a letter on Thursday to President Biden calling on him to “to change course” on his Executive Order mandating Federal contractors receive COVID-19 vaccinations and the Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) that would require employers of over 100 people to mandate vaccination or submit to regular testing. The Senators argued:

The Executive Branch does not have the constitutional authority to take these invasive actions and your mandates will threaten the livelihoods, earned benefits, and financial health of untold numbers of hardworking Americans and their families.”

Signatories to the letter included:  Senators Tommy Tuberville (Alabama), Dan Sullivan (Arkansas), Mike Braun (Indiana), Roger Wicker (Mississippi), Steve Daines (Montana), Deb Fischer (Nebraska), Marsha Blackburn (Tennessee), Michael Lee (Utah), John Barrasso (Wyoming), and Cynthia Lummis (Wyoming).

Also on Thursday, Governor Ron DeSantis (Republican) announced he is calling the Florida legislature into a special session in November to deal with Federal COVID-19 vaccine mandates and to seek to “protect” Florida’s Federal employees that choose not to be vaccinated. In a press release, Governor DeSantis said he is

[A]sking the Florida Legislature to provide protections for employees facing termination because of unfair, discriminatory COVID-19 vaccine mandates and to reaffirm that government entities including school districts may not fire any employee based on COVID-19 vaccine status.”

He added: “Violating government entities should be held accountable.  Employers’ broad liability protections should also be reevaluated if they harm employees through vaccine mandates.”  At a rally, the Governor confirmed he and Attorney General Ashley Moody are working to build a case to legally contest any Federal vaccine mandates.

Meanwhile, reports indicate Federal OSHA could possibly assert jurisdiction over workplace safety in three states – Arizona, Utah and South Carolina – that have yet to adopt President Biden’s emergency regulation for health care facilities.  These states participate in State Plans approved by OSHA, which means the states can handle workplace safety as long as they meet minimum Federal OSHA requirements.  Twenty-two states have State Plans covering both private- and public-sector workers.

On Tuesday, OSHA officials shared with reporters that Arizona, Utah and South Carolina had missed the deadline for implementing the health care facilities regulation. Consequently, the Biden Administration could move to revoke approval of their State Plans, which would subject employers in these three states to federally run inspections. Meanwhile, a spokesperson for the Industrial Commission of Arizona, which includes the state’s OSHA office, said state officials were “surprised” to receive a letter threatening to revoke approval of Arizona’s State Plan. Arizona has reportedly been working on developing a rule that it will also publish for public comment.

Looking ahead to next week, the House Education & Labor Subcommittees on Workforce Protections and Civil Rights and Human Services is set to hold a joint hearing titled, “Protecting Lives and Livelihoods: Vaccine Requirements and Employee Accommodations.”

Other General COVID-19 Updates. Despite the overall trend of decreasing Delta COVID-19 cases, cold weather U.S. states are reportedly showing the highest rate of new COVID-19 cases.  Meanwhile, officials in the United Kingdom are closely monitoring a new COVID-19 variant – AY.4.2, which some are calling “Delta Plus” – which contains mutations that might give the virus survival advantages. U.S. officials are closely tracking the new variant.

The U.S. Centers for Disease Control and Prevention’s (CDC) vaccine advisory panel met on Thursday to discuss which patient groups should be eligible for COVID-19 vaccine boosters developed by Moderna and Johnson & Johnson (J&J). Regarding the Moderna vaccine, the panel recommended a 50 µg dose level for people aged 65 and older; people aged 18 to 64 who are at high risk of severe COVID-19; and people aged 18 to 64 with frequent institutional or occupational exposure to COVID-19. The panel also approved the J&J booster for all that had received a dose of that vaccine.

These moves followed the U.S. Food and Drug Administration’s (FDA) recommendation to allow boosters of these vaccines under emergency use authorization (EUA). The FDA also endorsed a so-called “mix and match” COVID-19 booster approach on Wednesday, which means Americans could receive a booster shot of a vaccine different from the one they received initially. The CDC signed off on the mix and match recommendation late on Thursday. Meanwhile, on Wednesday, the White House released its plan to vaccinate children between the ages of five and 11, pending authorization from the FDA and CDC of a COVID-19 shot for that age group.

Vice President Promotes Unions. At a virtual roundtable event with unionized Federal employees on Wednesday, U.S. Vice President Kamala Harris said: “We intend to do everything we can to help pass the Richard L. Trumka Protecting the Right to Organize Act, also known as the ‘PRO Act.’  And we intend to use our executive authority to lift up workers through this task force and to highlight the nobility of their work.”  She announced two new policies:  (1) one that seeks to inform new hires of their rights to join a union; and (2) ensures that all current workers are reminded that they are eligible to join a union.  Vice President Harris stated these actions are “just part of our broader strategy to make the Federal Government a model employer.” She added:  “And we call on all employers to make similar steps in doing the work of protecting workers, because we recognize the nobility of the work.”

House Education & Labor Committee Ranking Member Virginia Foxx (R-North Carolina) issued a statement following Vice President Kamala Harris and Labor Secretary Marty Walsh’s announced executive actions to promote labor unions.  She noted:

The Biden administration is exploiting federal authority to sell Americans on unions. Union bosses bought and paid for Democrat politicians, and now Biden is directing the federal government to reward his friends. Forcing the federal government to weave union-related materials into its hiring and onboarding processes is an incestuous overreach that is inappropriate in a system already wracked by partisanship. Biden is in a marriage with union bosses and there is no room in that relationship for the interests of workers, job creators, and taxpayers.”

Workplace Protections for Nursing Mothers. On October 22, the U.S. House of Representatives approved legislation – the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act (H.R. 3110 fact sheet) – that would strengthen and expand workplace protections for nursing mothers. The bill requires employers to provide nursing workers the break time and privacy they need to pump at work. House Education & Labor Ranking Member Foxx spoke on the House Floor in opposition to H.R. 3110, arguing it creates unworkable and unnecessary hurdles and penalties for employers. The Senate has yet to act on the House bill or its own related measure (S. 1658).

WSJ Editorial Board Weighs in on the National Labor Relations Board (NLRB). On October 19, The Wall Street Journal’s (WSJ) Editorial Board published an opinion piece related to the NLRB and spotlighting some ethics concerns with respect to the Biden Administration and labor unions, specifically NLRB appointees Gwynne Wilcox and David Prouty, who have worked for the Service Employees International Union (SEIU). House Education & Labor Ranking Member Foxx spotlighted the piece, saying it “aptly points out that Democrats have a glaring double standard when it comes to conflicts of interest” in cases before the NLRB and noting Republicans sent a letter to the NLRB that demanded prompt action on Members Gwynne Wilcox’s and David Prouty’s conflicts of interest.

Forced Labor Update. Effective October 21, U.S. Customs and Border Protection (CBP) officers at all U.S. ports of entry started detaining fresh tomatoes produced by the Mexican tomato farm Agropecuarios Tom S.A. de C.V., and Horticola S.A de C.V., and their subsidiaries. CBP issued a Withhold Release Order (WRO) based on information that “reasonably indicates” the use of forced labor against its workers. The CBP acknowledged Mexican authorities took action against allegations of forced labor conditions on the same tomato farm in October 2020, emphasizing this demonstrates the Mexican Government’s shared commitment to protecting the human rights of workers.

FACOSH Nominations Solicited. The Department of Labor published a notice on Friday soliciting nominations for membership for the Federal Advisory Council on Occupational Safety and Health (FACOSH), which advises the Secretary of Labor on matters relating to the occupational safety and health of federal employees. FACOSH has sixteen vacancies to fill:  eight are members representing federal departments and agencies (management members), and eight are from labor organizations representing federal employees (labor members). The Secretary appoints members for staggered terms of up to three years and may appoint some members to successive terms. FACOSH meets at least twice a year. Interested parties have until 22 November to submit nominations and supportive material.

Labor Department Confirmation Updates. Next Tuesday, October 26, the Senate Health, Education, Labor, and Pensions (HELP) Committee is set to hold a business meeting to vote on the following Labor Department nominations:  (1) Jose Rodriguez to serve as Assistant Secretary of Labor for Employment and Training; and (2) Larry Turner to serve as Inspector General of the Department of Labor.

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