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:
U.S. Economy Update
Federal Vaccine Mandate Legal Challenges Update
Local Government Vaccine Mandate | New York City
Notable Labor Department Developments
Both chambers of the U.S. Congress were in session this week. On Thursday, the U.S. Senate approved by a vote of 59 to 35 a measure that would allow Democrats to increase the debt limit under a one-time simple majority vote, without any Republican support. Senate Majority Leader Chuck Schumer (D-New York) and Speaker of the House Nancy Pelosi (D-California) have yet to release text of the bill that will raise the debt limit, saying they hope to clear such a measure before Wednesday, December 15. U.S. Secretary of the Treasury Janet Yellen has warned that after December 15 the U.S. Federal Government would be unable to meet its financial obligations.
U.S. Economy Update. On December 10, the U.S. Department of Labor’s Bureau of Labor Statistics (BLS) released its Consumer Price Index (CPI) report. The CPI for all urban consumers increased 0.8 percent in November, after rising 0.9 percent in October. Inflation hit 6.8 percent for the year, the highest since 1982. The indexes for gasoline, shelter, food, used cars and trucks, and new vehicles were among the larger contributors to increased prices in the month of November. BLS stated:
The energy index rose 3.5 percent in November as the gasoline index increased 6.1 percent and the other major energy component indexes also rose. The food index increased 0.7 percent as the index for food at home rose 0.8 percent.”
Pre-empting Friday’s consumer prices report, U.S. President Joe Biden issued a statement about jobs and prices on Thursday. He reminded last week’s November Jobs report reflected low unemployment filings, and acknowledged the Friday report was likely to reflect elevated consumer prices, or inflation. On Wednesday, White House Chief of Staff Ron Klain tweeted, “Gas prices are down somewhat.” This week, the U.S. Energy Information Administration projected that gasoline prices will decline to an average $2.88 per gallon next year, down from $3.39 in November. The President issued another statement after the CPI report was released, seeking to place the inflation increases in context for American consumers, while also calling on Congress to pass his $1.7 trillion climate and social spending bill – the Build Back Better Act (BBBA) – before Christmas.
Notably, the CPI report comes just days before Federal Reserve policymakers are set to meet. The data may give momentum to the Central Bank’s plans to speed up the withdrawal of its extraordinary support for the economy during the pandemic. It may also shift Senator Joe Manchin’s (D-West Virginia) position on the BBBA and whether the measure is on track to be approved this year. Senator Manchin reminded earlier this week that his concern about inflation outweighs the benefits of the President’s spending plan.
Federal Vaccine Mandate Legal Challenges Update. On Wednesday, the U.S. Senate utilized the Congressional Review Act (CRA) – a tool to overturn rules issued by federal agencies – and voted 52-48 on a measure to rebuke the Biden Administration’s Occupational Safety and Health Administration’s (OHSA) emergency temporary standard (ETS) vaccine or test mandate on businesses with 100 or more employees. Senator Patty Murray (D-Washington), Chair of the Senate Health, Education, Labor, and Pensions (HELP) Committee, argued against the measure:
This rule, which Republicans keep attacking, is saving lives. OSHA estimates it will help protect 84 million workers and prevent thousands of deaths and over 250,000 hospitalizations from COVID-19. And yet, Republicans are pushing to scrap it entirely, undermining that progress and putting American lives and livelihoods in danger.”
Democrats Joe Manchin (West Virginia) and Jon Tester (Montana) joined all Republicans in approving the measure in the Senate.
The parallel House effort has the unanimous backing of the chamber’s Republicans, but is short of the 218 votes necessary to a companion measure to the House floor for a vote. Should the lower chamber advance the measure, White House Press Secretary Jen Psaki warned on Tuesday, “If it comes to the President’s desk, he will veto it.”
Separately, on December 9, Education & Labor Committee Ranking Member Virginia Foxx (R-North Carolina) and every Republican Member of the Committee sent a letter to U.S. Department of Labor Secretary Marty Walsh expressing strong opposition to OSHA’s ETS. The House lawmakers noted:
In promulgating the vaccination-and-testing ETS, OSHA grossly exceeds the authority delegated to it by Congress under the OSH Act. By ordering OSHA to enact a federal vaccine-and-testing mandate, the Biden administration is bypassing congressional intent to impose a public health edict under the guise of workplace safety.”
With respect to legal challenges, this week, Federal Judge R. Stan Baker, who is based in Georgia, issued a nationwide injunction against the Biden Administration’s vaccine mandate for Federal contractors. In issuing the stay, Judge Baker noted the President likely exceeded his authority by imposing the requirement. The Biden Administration is set to appeal the Judge’s decision.
Amtrak President Stephen Gardner reported to the House Transportation Committee this week that Amtrak will need to reduce service next month primarily on its long distance trains, since some worker have yet to meet the Federal vaccine mandate requirements. While he reported 94 percent of Amtrak employees are fully vaccinated, he said that retirements and unfilled positions (due to pandemic-driven low ridership) would result in not enough employees to continue current operations, starting on January 4, 2022.
Local Government Vaccine Mandate | New York City. This week, New York City Mayor Bill de Blasio ordered most businesses in the city to get workers vaccinated by December 27. Unlike the OSHA ETS, workers would not be able to opt out with COVID-19 testing, although waivers will be considered for religious or medical reasons. The Mayor’s order will apply to will apply to roughly 184,000 businesses. Additional details about how businesses will report workers’ vaccination status will be forthcoming on December 15, along with additional resources to support small businesses with implementation.
Notable Labor Department Developments. On December 7, Secretary Walsh announced the Multilateral Partnership for Organizing, Worker Empowerment and Rights (“M-POWER”) initiative, ahead of the President Biden’s Summit for Democracy. M-POWER would be the largest commitment by the U.S. Government – with more than $120 million funded by the Department of Labor, Department of State and the U.S. Agency for International Development – to advance worker empowerment and support trade union rights in the global economy. The initiative seeks to bring together governments, worker organizations and labor stakeholders to:
Strengthen free and independent trade unions;
Support labor law reform and enforcement;
Promote worker organizing and innovative use of collective bargaining; and
Extend labor law coverage to protect workers employed in low-wage jobs and sectors often excluded from labor law protection, particularly in the informal economy.
On December 8, the Labor Department announced the award of a $10 million cooperative agreement to American Institutes for Research to strengthen the labor mediation process in Mexico. This project aligns with Department’s support of Mexico’s 2019 labor law reform effort and its commitment to promote effective recognition of collective bargaining rights as part of the U.S.-Mexico-Canada Agreement (USMCA).
Also on December 8, the Labor Department signed a Memorandum of Understanding (MOU) to reaffirm the Department’s commitment to administer and enforce the protections afforded to military service members and veterans by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA is the Federal law that establishes the rights and responsibilities for uniformed service members and their civilian employers. The MOU renews one between the Department’s Veterans’ Employment and Training Service and the Department of Justice’s Civil Rights Division, memorializing long-standing procedures and updating protocols and procedures for investigations and referrals, and for information sharing.
On December 6, the Labor Department extended the deadline for submitting nominations to serve on the Federal Advisory Council on Occupational Safety and Health (FACOSH). Interested parties have until January 31, 2022, to submit nominations; additional details can be found here.
COVID-19 Updates. Omicron COVID-19 cases continue to be detected across the United States, while the U.S. Centers for Disease Control and Prevention (CDC) continues to report the Delta variant remains the dominant strain in the country. Notably, the South African Medical Research Council reported that over the past two weeks, the majority of Omicron patients in South African hospitals’ COVID-19 wards have not required extra oxygen to breathe. Only about a third of South Africa’s eligible population has been fully vaccinated — far lower than in the United States.
On December 8, Pfizer/BioNTech provided an update on its ongoing research with respect to Omicron and the effectiveness of its COVID-19 vaccine. According to Pfizer/BioNTech:
Preliminary laboratory studies demonstrate that three doses of the Pfizer-BioNTech COVID-19 Vaccine neutralize the Omicron variant (B.1.1.529 lineage) while two doses show significantly reduced neutralization titers.”
On November 25, the companies started to develop an Omicron-specific COVID-19 vaccine, noting that first batches of the Omicron-based vaccine can be produced and are planned to be ready for deliveries within 100 days, pending regulatory approval. Moderna has not yet talked specifically about the effectiveness of its own vaccine against Omicron; the company is also working on an Omicron-specific vaccine. Meanwhile, the Biden Administration continues to urge Americans (adult and children) to get vaccinated and boosted, if already vaccinated.
© Copyright 2023 Squire Patton Boggs (US) LLP