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 December 27, 2021.
- Federal Vaccine Mandate Legal Challenges Update
- COVID-19 Updates
- Notable Labor Department Developments
The first session of the 117th Congress adjourned officially on Thursday, December 30. Lawmakers return to Washington next week for the second session of the 117th Congress, which convenes on January 3, 2022.
Federal Vaccine Mandate Legal Challenges Update. Next week, the U.S. Supreme Court will hear expedited arguments on the Sixth Circuit Court’s decision to lift the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s vaccine or test Emergency Temporary Standard (ETS). On January 7, 2022, the Court also will hear oral arguments on a stay of the Centers for Medicare and Medicaid Services’ (CMS) Vaccine Mandate for health care workers that participate in the Medicare and Medicaid government programs. While the Supreme Court has thus far declined to take up cases related to state and local government vaccine mandates, the Court has been asked to address some constitutional questions with respect to these two Federal vaccine mandates.
Separately, on December 28, Oklahoma-based U.S. District Judge Stephen Friot denied the State of Oklahoma’s request for a preliminary injunction against the Federal vaccine mandate for members of the Oklahoma National Guard. In his ruling, Judge Friot wrote:
The vaccine mandate to which the governor objects is the one — in addition to the nine that already apply to all service members — intended to protect service members from the virus which has, in less than two years, killed more Americans than have been killed in action in all of the wars the United States has ever fought. The court is required to decide the case on the basis of federal law, not common sense. But, either way, the result would be the same.”
The Oklahoma legal challenge centers around two Federal statutes that the National Guard operates under: (1) Title 32 of U.S. Code, which puts the Guard under control of the Governor, and (2) Title 10, which places the Guard under Federal control.
The litigation, however, continues with respect to this case. Notably, the deadline for Air National Guard and Air Force Reserve personnel to be vaccinated was December 2, while Army National Guard members have until June 30 to comply. In recognizing the December deadline, Judge Friot urged the Department of Defense to provide a grace period for Guard members to get vaccinated. He noted:
The court strongly urges the defendants to give every consideration to providing a brief grace period-to facilitate prompt compliance with the vaccination mandate-before directly or indirectly taking action which would end the military careers of any Oklahoma Guard members.”
COVID-19 Updates. Amid a surge of Omicron cases after the Thanksgiving and Christmas holidays and labor shortages due to infections seen especially in the airline/airport sector, which saw hundreds of flights being cancelled, the U.S. Centers for Disease Control and Prevention (CDC) on Monday shortened the quarantine window for people with asymptomatic COVID-19 cases, from ten to five days. Previously, the general rule has been that people with COVID-19 must isolate for 10 days after their symptoms start, or, if asymptomatic, for 10 days after their first positive COVID-19 test. Despite shortening the isolation window, asymptomatic individuals are urged to wear their masks for another five days after exposure and the five-day quarantine period.
This change in guidance comes after the CDC adjusted its isolation guidelines for health care workers last week. Health care workers with COVID-19 can return to work after seven days if they are asymptomatic and test negative. Notably, rapid COVID-19 tests are viewed as preferable for a quick response on whether an individual is contagious – albeit the U.S. Food & Drug Administration acknowledges its false positive findings – than the more time consuming Polymerase chain reaction (PCR test).
Following the CDC’s announcement, the Association of Flight Attendants-CWA International suggested the CDC loosened rules for quarantine at the behest of the airline industry. Airlines for America, which represents major U.S.-based airlines, reportedly urged the CDC last Thursday to reconsider its isolation guidance for fully vaccinated individuals that experience breakthrough COVID-19 infections. Meanwhile, despite previously noting the effectiveness of air filtration systems on airlines for effectively mitigating the spread of COVID-19, on Monday, Dr. Anthony Fauci – White House Chief Medical Advisor – suggested on MSNBC that he was in favor of American travelers being vaccinated to board domestic flights. He appeared to temper these comments later on Monday in interviews with MSNBC and CNN, saying that he did not expect to see a vaccine mandate for domestic flights anytime soon.
On December 27, U.S. President Joe Biden participated in a COVID-19 update with the National Governors Association (NGA). In remarks to participating Governors, President Biden said of the pandemic: “Look, there is no federal solution. This gets solved at a state level.” He told Governors: “If you need something, say something — and we — we’re going to have your back in any way we can.” A White House readout of the call reflected:
The group discussed a range of topics, including the latest science on the Omicron variant, the use and distribution of COVID-19 treatments, expanding Federal partnerships and resources on testing, and keeping the Nation’s schools open.”
To ramp up production of at-home COVID-19 tests, on December 29, the Department of Defense (DOD), in coordination with the U.S. Department of Health and Human Services, awarded a $136.7 million contract to MilliporeSigma to establish nitrocellulose membrane production capacity in the United States. According to DOD, nitrocellulose membrane is a critical material used in manufacturing SARS-CoV-2 rapid point-of-care tests. Using the Defense Production Act authority, the industrial base expansion effort will allow MilliporeSigma to establish a nitrocellulose manufacturing capability at its Wisconsin facility to support more than 83.3 million tests per month for COVID-19 testing.
While the CDC has not changed its guidance on cloth masks, doctors at the frontlines of addressing increased Omicron cases are urging the public to don at least a three layer surgical mask or one that has an N-95 or higher designation. If wearing a cloth mask, doctors urge individuals to wear one that it is at least two or three layers of fabric, with a filter insert.
Notable Labor Department Developments. On December 29, the U.S. Department of Labor announced the rescission of the Final Rule on “Labor Organization Annual Financial Report for Trusts in which a Labor Organization is Interested, Form T-1.” The Department published a final rule establishing the Form T-1 on March 6, 2020, requiring labor unions with $250,000 or greater in total annual receipts that file the Form LM-2 annual union financial disclosure report to also file a separate report covering the finances of certain trusts in which they are interested, such as apprenticeship and training plans, etc. After reviewing comments received on its Notice of Proposed Rulemaking, the Department determined the Form T-1 would not provide additional information necessary for the Office of Labor-Management Standards to track labor organization fraud.
Also on December 29, the Labor Department awarded $8.4 million in a cooperative agreement to the Pan American Development Foundation to empower civil society organizations and workers’ organizations to address child labor, forced labor and other unacceptable working conditions in El Salvador, Guatemala and Honduras. This funding is part of the Biden Administration’s “Root Causes of Migration Strategy,” which seeks to address factors contributing to increased levels of migration from the Northern Triangle countries.