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 November 8, 2021.

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In this issue, we cover:

U.S. Economy Update
Federal Vaccine Mandate Legal Challenges Update
Other General COVID-19 Updates
U.S. Agencies Promote Workers’ Rights
Proposal to Rescind Religious Exemption Final Rule

Both chambers of the U.S. Congress were in recess this week in observance of Veterans Day.  Lawmakers return to Washington next week, where House Democrats are set to resume work on their version of the $1.7 trillion Build Back Better Act, a social and climate change spending bill advancing via the budget reconciliation process.  This coming Monday, U.S. President Joe Biden is set to sign the $1.2 trillion bipartisan infrastructure bill into law.

U.S. Economy Update.  On November 10, the U.S. Department of Labor released statistics reflecting inflation had increased to 6.2 percent in October – a 31 year high – with increases hitting the energy, shelter, food, used cars and trucks, and new vehicles sectors.  The energy index rose 4.8 percent over the month, with the gasoline index increasing 6.1 percent – its fifth consecutive monthly increase.  The food index increased 0.9 percent, as the index for food at home rose 1.0 percent.  Notably, the energy index rose 30 percent over the last 12 months, and the food index increased 5.3 percent.  Supply chain disruptions and labor shortages have contributed to increasing inflation in the United States.

While the Federal Reserve (“the Fed”) has repeatedly insisted price pressures will prove “transitory,” experts are suggesting the stronger inflation pressures will likely lead the Fed to lift interest rates sooner than anticipated.  Federal Reserve Chairman Jerome Powell warned last week that inflation had been “longer lasting than anticipated.”  Meanwhile, Americans remain worried about inflation, especially ahead of the holidays and cooler temperatures that result in higher energy demands.  Some polls are reflecting most blame the Biden Administration for increased prices due to inflation.

Federal Vaccine Mandate Legal Challenges Update.  After several state Attorneys General filed lawsuits against the Biden Administration’s  temporary standard (ETS) requiring employers with 100 employees or more to require COVID-19 vaccines or weekly testing of employees, the U.S. Court of Appeals for the Fifth Circuit (based in New Orleans) responded to one suit and granted a stay.  In its Monday response to the court, the U.S. Federal Government argued the stay is “premature,” pointing out that any harm cited by petitioners in their challenge is “months” away.  The Labor Department also argued that the petitioners could not show that “their claimed injuries outweigh the harm of staying a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations.” The Labor Department further cited Federal Law (28 U.S.C. § 2112) and reminded there are procedures courts must follow when “multiple petitions for review of a single agency order are filed in at least two courts of appeals within ten days after issuance of the order.”

Under the rules that govern multidistrict litigation, one of the courts of appeals will be chosen by lottery to hear all of the pending cases.  As a result, the Fifth Circuit might not be the court that ultimately address the many pending challenges to the regulations.  Not surprisingly, the Biden Administration continues to urge employers to move forward with complying with the ETS and forthcoming deadlines.

Other General COVID-19 Updates.  On November 8, the United States resumed accepting some international travelers, after being closed to all foreign travelers since March 2020.  In a statement that day, Secretary Raimondo welcomed the lifting of international travel restrictions for fully vaccinated travelers, noting,

The travel and tourism industry is a vital part of the American economy, providing millions of jobs to Americans, supporting local businesses, and showcasing what our country has to offer to travelers from around the world.”

The U.S. Food & Drug Administration’s (FDA) Antimicrobial Drugs Advisory Committee (AMDAC) is set to meet on November 30 to consider authorizing the use of molnupiravir, an antiviral pill produced by Ridgeback and Merck.  On November 5, Pfizer reported its antiviral pill, Paxlovid, can reduce hospitalization risk by 89 percent.  Pfizer also shared it plans to soon submit its clinical data to the FDA for emergency use authorization.

U.S. Agencies Promote Workers’ Rights.  On November 10, the U.S. Labor Department, National Labor Relations Board (NLRB) and U.S. Equal Employment Opportunity Commission (EEOC) announced a joint initiative to raise awareness about retaliation issues when workers exercise their protected labor rights.  In the coming year, these civil law enforcement agencies will increasingly collaborate on issues such as unlawful retaliatory conduct, along with educating the public and engaging with employers, business organizations, labor organizations and civil rights groups.  A virtual dialogue with the employer community is set for November 17, and will focus on the importance of workers’ anti-retaliation protections for those exercising their rights, and the agencies’ shared commitment of “vigorous enforcement.”

Proposal to Rescind Religious Exemption Final Rule.  On November 8, the Labor Department announced a proposal to rescind the final rule “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption,” which has been in effect since January 8, 2021.  A proposal published in the Federal Register on November 9, noted that rescinding this rule would ensure religious exemptions are applied consistent with principles and case law interpreting Title VII of the Civil Rights Act of 1964.  The Department argues the action “would preserve the availability of the Executive Order 11246 religious exemption for employers whose purpose and character are primarily religious, and would consider the applicability of the religious exemption to the facts of each case in accordance with Title VII case law.”  Executive Order 11246 requires affirmative action and prohibits Federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin.  Parties interested in commenting on the proposal have until December 9 to submit comments.

House Education & Labor Committee Ranking Member Virginia Foxx (R-North Carolina) issued the following statement on the Labor Department’s proposed rule to rescind the previous Administration’s rule:

“This is a direct attack on every employer who dares to follow their faith. The Biden administration practices its own First Amendment rights daily, but it is eagerly stripping that God-given protection away from everyday Americans. President Trump’s rule benefitted everyone, from the taxpayers who rely on the necessary goods and services provided by faith-based organizations to the employees and job creators who do not have to deny their religion to compete for federal contracts. Today’s proposed rule only benefits left-wing special interests.  The [Department of Labor] is a pawn in Biden’s assault on religious freedom.”

Employment Law Worldview