US Federal Labor Viewpoints – Week of September 20, 2021
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 Package Updates
Tipped Workers’ Final Rule Published
Protecting Workers from Heat
Senate Apprenticeship Hearing Recapped
Reconciliation Package Updates. House Budget Committee Chairman John Yarmuth (D-Kentucky) indicated on Thursday that House Democrats are preparing to mark-up their $3.5 trillion spending package this coming weekend, admitting it would be “more procedural than substantive” since the bill is not yet finished and the Congressional Budget Office has yet to score it. Democratic leaders also said on Thursday that they have an agreement on “a framework” of options to pay for their social spending ambitions. These announcements came after a half-day meeting with U.S. President Joe Biden at the White House on Wednesday, and a Thursday morning meeting with Treasury Secretary Janet Yellen, White House Adviser Brian Deese and Congress’ top tax writers.
Meanwhile, Senator Joe Manchin (D-West Virginia) signaled late on Thursday that he has yet to agree to a topline amount for the reconciliation package. Speaker of the House Nancy Pelosi (D-California) is still on track to hold a vote in the lower chamber this coming Monday (September 27) on the $1.2 trillion bipartisan infrastructure bill, despite the uncertainty of whether progressives will relent on their threats to vote against the bill. Both chambers of Congress will also need to vote on a stop-gap spending measure this coming week to fund the U.S. Federal Government beyond September 30. Congress also must soon address lifting or delay implementing the U.S. debt ceiling to avoid the Treasury Department defaulting on looming debt obligations.
COVID-19 Updates. On Sunday, September 19, Dr. Anthony Fauci, White House Chief Medical Advisor, suggested the Pfizer/BioNTech COVID-19 vaccine would likely be approved for children ages five to 11 this fall. He also indicated Moderna’s COVID-19 vaccine for children under the age of 12 is expected to be approved a couple of weeks later. On Monday, September 20, Pfizer/BioNTech reported its COVID-19 vaccine, formulated at a smaller dose, is effective for children ages five to eleven.
On September 22, Senate Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Senator Richard Burr (R-North Carolina) released a statement welcoming the U.S. Food and Drug Administration’s announcement issuing an Emergency Use Authorization (EUA) for booster shots of Pfizer/BioNTech’s COVID-19 vaccine for high-risk individuals and those over 65. He also led a group of Republican Leaders – including Senate Minority Leader Mitch McConnell (R-Kentucky) – in a letter calling on White House Coronavirus Response Coordinator Jeffrey Zients to release an updated strategy to more effectively leverage vaccines and end the pandemic. The Senators requested Mr. Zients respond to their questions by September 30, including questions seeking clarity as to why the Biden Administration announced vaccine boosters would be available to all Americans prior to scientific and regulatory processes had concluded their findings and what steps are being implemented to prevent politics from overpowering science.
On Thursday, September 23, the Advisory Committee on Immunization Practices (ACIP), which advises the U.S. Centers for Disease Control and Prevention (CDC), recommended Pfizer/BioNTech COVID-19 vaccine boosters for Americans 65 and older, along with those living in nursing homes and some immunocompromised Americans. ACIP, however, voted against providing the booster shots for health care workers and others in high-risk occupations. Late on Thursday, CDC Director Dr. Rochelle Walensky signed off on the series of ACIP recommendations but overruled the panel’s recommendation for frontline workers. She stated:
As CDC Director, it is my job to recognize where our actions can have the greatest impact. At CDC, we are tasked with analyzing complex, often imperfect data to make concrete recommendations that optimize health. In a pandemic, even with uncertainty, we must take actions that we anticipate will do the greatest good.”
On September 24, the Biden Administration issued its guidance for Federal contractors to be vaccinated. The new guidance says that Federal contractor employees covered by the rules “must be fully vaccinated no later than December 8” and adds that after that date, employees must be vaccinated by the first day of performance on a new or extended contract. The Administration also said all covered contractors must be vaccinated “except in limited circumstances where an employee is legally entitled to an accommodation.” Meanwhile, U.S. Secretary of Commerce Gina Raimondo indicated last week that the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard requiring employers with more than 100 workers to have them inoculated or tested weekly will be released in October.
Tipped Workers’ Final Rule Published. On September 23, the U.S. Department of Labor published a final rule in The Federal Register, restoring the Department’s ability to assess civil money penalties against employers who take tips earned by their employees, regardless of whether those violations are repeated or willful. The rule further allows managers and supervisors to contribute to valid tip pooling arrangements, without receiving tips from those pools. With the final rule’s publication, the Department withdrew the civil money penalties’ provisions in the 2020 final rule that would have allowed the Department to assess these penalties for violations only when employers kept employees’ tips and the Department found their violations to be repeated or willful. Note that the Consolidated Appropriations Act of 2018 allows the Department to impose civil money penalties to $1,100 when employers keep employees’ tips – in violation of the law – regardless of whether violations are repeated or willful.
Protecting Workers from Heat. On September 20, the White House announced a coordinated, interagency effort to respond to extreme heat that threatens the lives and livelihoods of Americans, especially workers, children, and seniors. According to a fact sheet:
OSHA is expected to publish an Advance Notice of Proposed Rulemaking (ANPRM) next month on heat illness prevention in outdoor and indoor work settings. The ANPRM will initiate a comment period allowing for OSHA to gather diverse perspectives and technical expertise on topics including heat stress thresholds, heat acclimatization planning, and exposure monitoring.
OSHA would also launch a new enforcement initiative to prioritize heat-related interventions and workplace inspections on days when the heat index exceeds 80°F. On these days, OSHA Area Directors will dedicate additional resources in responding to heat-related complaints and expand the scope of programmed and unprogrammed inspections to address heat-related hazards.
OSHA is also working to formalize a National Emphasis Program (NEP) on heat hazard cases, which will target high-risk industries and focus OSHA resources and staff time on heat inspections. Establishing a new NEP requires extensive data review, which OSHA is working to complete in order for the NEP to take effect before the Summer 2022 heat season. OSHA will build on the existing Regional Emphasis Program for Heat Illnesses in Region VI, which covers Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
OSHA’s National Advisory Committee on Occupational Safety and Health (NACOSH) will form a Heat Illness Prevention Work Group to provide better understanding of challenges and best practices in protecting workers from heat hazards. This group will include three members of the full NACOSH—a public representative, labor representative, and management representative—as well as new members from the private sector.
Senate Apprenticeship Hearing Recapped. On September 22, the Senate HELP Subcommittee on Employment and Workplace Safety heard from three private sector witnesses testifying at their hearing titled, “Getting America Ready to Work – Successful on the job, apprenticeship training programs to help workers and business get ready to work.” The Subcommittee heard from Mr. Noel Ginsburg, Founder and CEO of CareerWise; Ms. Naarai Navarro, Business Development Representative of Pinnacol Insurance; and Ms. Leah Curry, President of Toyota Motor Manufacturing. (The hyperlinks take you to the prepared, written testimony of each witness.)