This is a weekly article highlighting labor-related topics developed by the US Legislature and Executive over the past week.
In this issue we cover:
The second session of the 117th US Congress resumed earlier this week. Sen. Joe Manchin (D-West Virginia) told reporters Tuesday that there were no negotiations related to the Building back better (BBBA), President Joe Biden’s social spending and climate bill, as the talks ended abruptly before the holidays. Senate Majority Leader Chuck Schumer (D-New York) reiterated his intention to hold a Senate vote on the BBBA. White House press secretary Jen Psaki said Tuesday that the president “absolutely wants Build Back Better done,” saying President Biden and senior White House officials would continue to speak with senators.” in the coming weeks”.
Democratic lawmakers are focused on electoral reform in the short term, following the anniversary of the Jan. 6 US Capitol breach. Senate Majority Leader Schumer said he plans to schedule a debate on changing Senate filibuster rules on Martin Luther King Jr. Day (January 17), if Republicans continue to block the vote. voting rights legislation. The United States House of Representatives had a working district period this week.
December jobs report.
On Friday, the US Department of Labor released its December jobs report, which reflected that the economy added 199,000 jobs, well below the 422,000 expected. The unemployment rate in December was down to 3.9% from 4.2% in November. Meanwhile, on Tuesday, the Labor Department’s Job Openings and Labor Turnover Survey found that 4.5 million Americans quit their jobs in November. With the rise of the Omicron COVID-19 variant, labor market experts predict greater volatility this month as the variant affects school reopenings, corporate return-to-work plans, large events and other benchmarks of economic normalcy.
Update on the legal challenges of the federal vaccine mandate.
On Friday, the U.S. Supreme Court heard arguments on the Sixth Circuit Court’s decision to lift the Occupational Safety and Health Administration’s (OSHA) Fifth Circuit vaccine suspension or test the emergency temporary standard (ETS). The Court also heard arguments about a suspension of the Centers for Medicare and Medicaid Services (CMS) vaccination mandate for healthcare workers who participate in the government’s Medicare and Medicaid programs. Early media coverage of the arguments against OSHA ETS in the Supreme Court reflected that they ranged from the federal government’s overreach to all workplaces not at high risk of exposure to COVID-19 and therefore should not not be subject to a mandate for regular testing or vaccination.
A federal judge issued a preliminary injunction on Monday that effectively granted more than 30 Navy special operators the first religious exemptions for the COVID-19 vaccine. U.S. District Judge Reed O’Connor concluded that “the COVID-19 pandemic gives the government no license to abrogate” the freedom to refuse the vaccine on religious grounds. Despite receiving 2,877 requests from active duty sailors to be exempted from the vaccination mandate on religious grounds, the Navy had not yet approved any religious exemptions for the COVID-19 vaccine. Judge O’Connor rebuked the service, noting:
“The Navy has not granted a religious exemption to any vaccine in recent memory. It simply rubber-stamps every denial. Navy service members in this case are seeking to assert the very freedoms they have so many sacrificed to protect.”
President Biden remains focused on COVID-19, especially since the Omicron variant now dominates most infections in America. On January 3, the United States surpassed one million new coronavirus cases, with an average of about 550,000 new infections reported per day over the past week. The United States Centers for Disease Control and Prevention (CDC) reported the same day that the Omicron COVID-19 variant now accounts for nearly all sequenced cases in the United States. The once-dominant Delta variant now represents only 4.6% of sequenced cases.
On January 4, President Biden provided an update on federal efforts to address the surge in Omicron cases, acknowledging the continuing challenges associated with COVID-19 testing capabilities. He urged schools to stay open as they returned to session after the holidays. Pfizer Inc. announced the same day that the US government had agreed to buy 10 million more doses of its antiviral pill, Paxlovid, doubling the original order from 10 million doses to 20 million doses.
Due to concerns from the Chicago Teachers Union (CTU) regarding COVID-19 safety protocols, schools in Chicago have yet to resume classes in Illinois. CTU voted on Tuesday to provide remote instruction until additional COVID-19 safety measures are in place, opposing in-person instruction. However, Chicago Mayor Lori Lightfoot barred instructors from remote learning, leading the school district to cancel classes for a third straight day on Friday. CTU argues that members have the right to refuse “unsafe work assignments”; it seeks to require all students to present a negative COVID test before resuming in-person learning. Regarding the strike in Chicago, White House press secretary Jen Psaki said Wednesday that the president wants schools open, recalling the negative effect on children’s mental health and the learning gaps that can result.
On January 3, the United States Food & Drug Administration (FDA) amended the Emergency Use Authorization (EUA) of the Pfizer/BioNTech COVID-19 vaccine to:
Expand the use of a single booster dose to include use in children 12-15 years of age;
Shorten the time between the end of the primary vaccination of the Pfizer-BioNTech COVID-19 vaccine and a booster dose to at least five months; and
Authorize a third primary series dose for some immunocompromised children aged 5 to 11 years.
On January 5, the CDC approved COVID-19 booster shots for children ages 12 to 15. On the same day, the CDC updated its COVID-19 vaccine guidelines, saying it recommends,
“[P]People stay up to date with their vaccines, which includes extra doses for immunocompromised people or booster doses at regular times.
Although completion of a primary series of a particular vaccine means most individuals are considered “fully immunized,” the CDC’s change means individuals are only “up to date” if they have received their booster doses.
On Dec. 31, US-based Novavax submitted its latest clinical datasets to the FDA to satisfy EUA’s research requirements for its COVID-19 vaccine. The FDA EUA process typically takes a month.
Next week, the Senate Committee on Health, Education, Labor and Pensions (HELP) is scheduled to hold a hearing entitled “Addressing New Variants: A Federal Perspective on the COVID-19 Response.” CDC Director Rochelle Walensky and Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and White House chief medical adviser, are among those scheduled to testify before the panel on January 11.
On January 3, Senators Richard Burr (R-North Carolina), ranking member of the Senate HELP Committee, and Roy Blunt (R-Missouri), ranking member of the Senate Appropriations Subcommittee on Labor, Health and social services, education, and related agencies, sent a letter urging Health and Human Services Secretary Xavier Becerra to detail the Biden administration’s strategy to address the national COVID-19 testing shortage in middle of Omicron’s thrust. The senators noted that the country faces a shortage of COVID-19 tests despite Congress providing more than $80 billion over the past two years to the administration to improve and expand testing-related capabilities.
Notable developments in the Department of Labor.
This week, OSHA and the Mexican Consulate General in Kansas City renewed an alliance — first signed in 2013 — to continue their collaborative relationship to promote workplace safety and health with the consulate and nationals. Mexicans working in Kansas and Missouri. On January 4, the Department of Labor awarded $14 million in cooperative agreements to support a wide range of actions through two projects aimed at combating child labor, forced labor and human trafficking.
On January 6, the Department of Labor and the National Labor Relations Board (NLRB) announced that the Wage and Hour Division (WHD) and the NLRB had signed a Memorandum of Understanding (MOU) strengthening their partnership and outlining information-sharing procedures, investigations and enforcement activities, as well as training, education and community outreach. Regarding the new MOU, Virginia Foxx (R-NC), a ranking member of the House Education and Labor Committee, released the following statement:
“Allowing the WHD and NLRB to join forces will create a perfect storm for businesses still struggling to recover from this pandemic. … This deal is part of the Biden administration’s organizing campaign. Once again, this administration is proving that it will always put big labor and union bosses above American workers and business owners.
© Copyright 2022 Squire Patton Boggs (USA) LLPNational Law Review, Volume XII, Number 13