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 25, 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:

The Administration Releases its COVID-19 Vaccine Employer Rule
U.S. States Challenge Federal Vaccine Mandates
Other General COVID-19 Updates
October Jobs Report
House Approves Bill to Address Age Discrimination
Labor Department Confirmation Updates

Both chambers of the U.S. Congress were in session this week.  The U.S. House of Representatives struggled to move forward this week on U.S. President Joe Biden’s Build Back Better agenda, delaying a scheduled Friday vote until likely after the upcoming recess on its version of the $1.75 trillion Build Back Better Act, which includes paid leave provisions.  Meanwhile, the chamber did approve the Senate-passed $1.2 trillion bipartisan infrastructure bill late on Friday, sending the bill to the President’s desk.  Both chambers are scheduled to be in recess this coming week in observance of Veterans Day; lawmakers return to Washington the week of November 15.  Meanwhile, the U.S. Department of Labor unveiled its controversial COVID-19 vaccine employer rule this week.

The Administration Releases its COVID-19 Vaccine Employer Rule.  On Thursday, the Biden Administration released a pre-published version of the Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) on vaccine mandates for private sector employers with 100 or more employees; the Federal Register published the ETS on Friday.  In the preamble, the ETS claims unvaccinated workers face “grave danger,” as part of the Administration’s legal justification for the action.

The Administration further noted the ETS serves as a proposal under Section 6(b) of the Occupational Safety and Health Act of 1970 for a final standard.  As such, OSHA is soliciting public comments on all aspects of this ETS and how it would be adopted as a final standard.  OSHA will also continue to monitor trends in COVID-19 infections and deaths as the pandemic continues to evolve; where the Agency finds a grave danger from the virus no longer exists, or new information indicates a change in measures necessary to address the grave danger, OSHA may update the ETS accordingly.

OSHA estimates the ETS applies to about 84 million American workers.  In sum, employers with 100 or more employees (firm- or corporate-wide) must:

Verify their employees are vaccinated by the January deadline, or ensure unvaccinated employees produce a negative COVID-19 test on a weekly basis;
Provide paid-time off for employees to get vaccinated and, if needed, sick leave time to recover from any side effects experienced that keep them from working – this is effective December 5;
Ensure unvaccinated employees are masked while in the workplace; and
Comply with recordkeeping requirements.

To meet the employee vaccination rule established by the ETS, a covered employer’s policy must require:  vaccination of all employees, including all new employees as soon as practicable, other than those employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement.

However, the ETS does not apply to employees who do not report to a workplace where other individuals, such as co-workers or customers, are present.  This includes employees that work from home.  Also exempted are those employees that work exclusively outdoors.

To streamline vaccine requirement deadlines, employees falling under OSHA’s ETS, the Centers for Medicare & Medicaid Services (CMS) rule for health care workers at facilities participating in Medicare and Medicaid, or the Federal contractor rule will need to have their final vaccination dose – either their second dose of Pfizer/BioNTech or Moderna COVID-19 vaccines, or single dose of Johnson & Johnson’s vaccine – by January 4, 2022.  Employers have 30 days from the date of publication (November 5) to comply with most requirements; and 60 days to ensure weekly COVID-19 testing for those employees who have not received all doses required for a primary vaccination.

The ETS does not require employers to pay for any costs associated with weekly COVID-19 testing of employees, but they may voluntarily do so.  Employer payment for testing, however, may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.  With respect to recordkeeping, the ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

It remains to be seen how OSHA handles enforcement, including surprise inspections at workplaces, with a decreased number of OSHA inspectors.  As a deterrent, OSHA’s ETS states violators will face a fine of no more than $13,653 for each employee that is unvaccinated or not tested weekly, with repeat offenders facing a fine up to $136,532.

Notably, OSHA’s ETS does not apply to workplaces covered by either the CMS or the Federal contractor vaccine mandates.  The Biden Administration made clear that those states with State Plans must adopt and enforce occupational safety and health standards that are at least as effective as Federal OSHA’s requirements (29 U.S.C. 667(c)(2)).  OSHA confirmed it would work with State Plan states on adopting an emergency standard that is at least as effective as the ETS within the 30-day timeframe.  Taking aim at Republican-led states, the Administration stated the ETS and CMS rule pre-empt any state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.

OSHA has posted additional fact sheets and compliance materials on its website at https://www.osha.gov/coronavirus/ets2.  Stakeholders may submit comments and attachments, identified by Docket No. OSHA-2021-0007, electronically at www.regulations.gov, or they may contact the attorney at Squire Patton Boggs with whom they usually work for further assistance.

On Monday, November 8, Squire Patton Boggs hosted a webinar on the ETS, what the new rule means for employers, and how employers can become compliant by the December 5 deadline.  Presentation materials and the webinar recording are available here.

U.S. States Challenge Federal Vaccine Mandates.  At least seven states with State Plans are reportedly considering whether to challenge the Administration’s ETS in court, despite the Biden Administration warning that State Plans that fail to comply could be revoked.  This includes Alaska, Arizona, Indiana, Kentucky, South Carolina, Utah, and Wyoming.  Separately, several state Attorneys General have filed lawsuits against the Biden Administration’s vaccine mandates.

On Friday, Arizona Attorney General Mark Brnovich (Republican), who is co-leading a multistate coalition of 11 states[1], filed a lawsuit challenging the Biden Administration and federal officials to stop the ETS, citing the mandate is “unconstitutional, unlawful, and unwise.”  A separate petition filed by the attorneys general of seven other states[2] also seeks to block the mandate.  Notably, Kansas Governor Laura Kelly (Democrat), who is preparing for re-election in a predominantly red state, issued a statement opposing President Biden’s workplace vaccine mandate on Friday.  Meanwhile, Texas Attorney General Paxton (Republican) filed the State of Texas’s Petition for Review directly with the U.S. Court of Appeals for the Fifth Circuit on Friday.  This petition includes some companies and the states of Louisiana, Mississippi, South Carolina and Utah.  Governor Ron DeSantis (Republican) announced on Thursday that Florida would also sue the Biden Administration on Friday.

On October 29, Iowa Governor Kim Reynolds (Republican) signed House File 902 into law, a measure that requires Iowa employers with mandatory COVID-19 vaccine policies to waive their requirements for employees who seek vaccination exemptions for medical or religious reasons.  The law also allows individuals to qualify for unemployment insurance benefits if terminated for refusing COVID-19 vaccines.  Nebraska Governor Pete Ricketts (Republican) signed an executive order last Friday that would prevent state agencies from enforcing coronavirus vaccine mandates on state employees.

Separately, Iowa joined nine others states[3] in suing the Biden Administration last Friday for its Federal contractor vaccine mandate.  The suit challenges the Administration’s “use of federal procurement statutes to create sweeping new power to issue decrees over large swaths of the U.S. economy and take over areas of traditional state power.”  On Thursday, three other states – Tennessee, Kentucky and Ohio – filed a separate lawsuit against the Federal Government to stop the vaccine mandate for Federal contractors from taking effect.

Other General COVID-19 Updates.  On Monday, Novavax – a Maryland-based biotech company – reported Indonesia has become the first country in the world to grant emergency use authorization (EUA) for its COVID-19 vaccine.  Novavax previously reported Phase 3 trial data of its shot – which is given in two doses 21-days apart – found it was 100 percent effective against moderate and severe disease and was 90 percent effective at preventing COVID-19.  Unlike the mRNA COVID-19 vaccines (Pfizer/BioNTech, and Moderna), Novavax’s vaccine uses a protein containing part of the coronavirus to stimulate an immune response, an older technology that vaccine hesitant individuals may find more acceptable.  Novavax anticipates filing for EUA with the U.S. Food & Drug Administration (FDA) by the end of the year.  The company has already filed submissions with the European Medicines Agency, Canada, the United Kingdom and Australia.

On Tuesday, the U.S. Centers for Disease Control and Prevention (CDC) approved the Pfizer/BioNTech COVID-19 vaccine for children aged five to eleven.  The Biden Administration is encouraging health providers to begin vaccinating the approximately 28 million children in the age group as soon as possible.  While the Biden Administration has not mandated the vaccine for children, the City of San Francisco announced on Wednesday that children aged five to eleven would soon be required to provide proof of vaccination to enter restaurants and entertainment venues.

October Jobs Report.  On Friday, the Labor Department reported the job market added 531,000 jobs in October; the unemployment rate fell from 4.8 to 4.6 percent in October.  The Department also adjusted September job gains to 312,000 from a previous estimate of 194,000; and August jobs were raised to 483,000 from 366,000.  President Biden touted the gains as proof his Build Back Better agenda is working.   He added:

[T]here’s a lot more to be done.  We still have to tackle the costs that American families are facing.  But this recovery is faster, stronger, and fairer, and wider than almost anyone could have predicted.  That’s what the numbers say.”

President Biden also argued that the two bills the House is considering would help address inflation, a topic that has dominated American citizens’ attention, along with global supply chain disruptions.

House Approves Bill to Address Age Discrimination.  On November 4, the U.S. House of Representatives approved H.R. 3992, the Protect Older Job Applicants Act of 2021, which would allow older job applicants to challenge disparate impact claims about discriminatory hiring practices under the Age Discrimination in Employment Act (ADEA).  Notably, House Education & Labor Committee Ranking Member Virginia Foxx (R-North Carolina) objected to the bill, issuing a statement after the bill passed that reflected:  

Trial lawyers are sure to have a field day with this bill, which will give them cause to go after everything from job fairs on college campuses and online job boards to apprenticeship and internship programs.”

Labor Department Confirmation Updates.  On November 3, the U.S. Senate confirmed Mr. Raj Nayak to serve as Assistant Secretary of Labor for Policy by a vote of 54 to 45.

[1] State attorneys general from Missouri, Montana, Nebraska, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming also joined the challenge.

[2] Kentucky, Idaho, Kansas, Ohio, Oklahoma, Tennessee, and West Virginia.

[3] Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.

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