US Federal Labor Viewpoints – Week of November 29, 2021

It is a weekly publish spotlighting labor matters in focus by the US legislative and govt branches in the course of the earlier week.

Each chambers of the U.S. Congress had been in session this week, after a week-long recess for the Thanksgiving vacation.  Late on Thursday, the U.S. Senate authorised an 11-week stopgap spending invoice in a 69-28 vote, sending the measure to the President’s desk and averting a potential Federal Authorities shutdown at midnight on Friday.  The Persevering with Decision (CR) retains Federal Authorities funding at ranges set nearly a 12 months in the past, beneath the earlier Administration.

Previous to advancing the CR, the Senate voted on an modification put ahead by Senators Roger Marshall (R-Kansas) and Mike Lee (R-Utah) that will have blocked the Biden Administration’s vaccination necessities for U.S. companies, the Pentagon and the Federal workforce.  That modification did not advance after a 48-50 vote beneath a easy majority threshold.  Republican Senators John Thune (South Dakota) and Invoice Hagerty (Tennessee) missed the vote.  For the rest of the legislative calendar 12 months, lawmakers have a quantity of points to handle, such because the Fiscal Yr 2022 Nationwide Protection Authorization Act (NDAA) and Democrats are nonetheless pushing to approve their social spending invoice, the Construct Again Higher Act.

November Jobs Report

 On Friday, the U.S. Division of Labor launched its November Jobs Report, reflecting the U.S. economic system added 210,000 jobs in November.  Economists had anticipated there could be 550,000 jobs added.  The November report additionally revised October’s report back to mirror 546,000 jobs added from the 531,000 beforehand reported.  The unemployment price dropped to 4.2 % in November, from 4.6 % in October.

COVID-19 Updates | Winter Plan Introduced

On Thursday, December 2, U.S. President Joe Biden unveiled a Federal Winter COVID-19 Plan on the Nationwide Institute of Well being, as extra circumstances of a brand new coronavirus variant – Omicron, which first emerged in South Africa – had been identified throughout the nation.  The President famous the “action plan” consists of 5 parts:

  • increasing the nationwide COVID-19 vaccine booster marketing campaign;

  • launching new household vaccination clinics to make it simpler for kids and oldsters to get vaccinated in a single place, together with new insurance policies to maintain youngsters in class as a substitute of quarantining them at dwelling;

  • making extra available free at-home exams and having them coated by personal insurance coverage;

  • growing “Surge Response Teams” to reply to elevated circumstances in areas across the nation; and

  • accelerating efforts to vaccinate the remainder of the world, together with revising worldwide journey guidelines for folks coming to the US.

With respect to the final merchandise, the Facilities for Illness Management and Prevention (CDC) issued an amended order, “Requirement for Proof of Negative COVID-19 Test or Recovery from COVID-19 for All Air Passengers Arriving in the United States,” on Thursday.  The amended order and accompanying paperwork can be found here.  Importantly, the requirement is for all air passengers two years or older and is for any flight departing to the US from a international nation at or after 12:01am EST (5:01am GMT) on December 6, 2021.  It doesn’t embody necessities for testing after U.S. entry or any quarantine in the US.

The FAQs for passengers are instructive and make clear some of the extra complicated elements of the order.  The one-day requirement implies that in case your first flight in your journey to the US departs on a Wednesday, you will get the check at any time on the Tuesday the day earlier than – it’s not a 24-hour requirement.  The brand new requirement additionally accepts proof of having contracted COVID inside 90 days of the flight and having absolutely recovered earlier than the flight, as attested to by the optimistic COVID check and a letter from a physician/well being specialist earlier than you journey.

White House fact sheet on the President’s Winter Plan (launched forward of the President’s remarks) mirrored:

The President will name on companies to maneuver ahead expeditiously with requiring their staff to get vaccinated or examined weekly.”

It additionally famous:

“60 percent of businesses report they are moving forward with implementing a program to ensure their workers are either vaccinated or tested on a weekly basis, and the U.S. Chamber of Commerce and more than 100 leading public health experts have encouraged businesses to not delay in implementing these protective measures.”

Nevertheless, in his remarks, President Biden didn’t increase this situation.  He as a substitute mentioned:

And whereas my current federal vaccination necessities are being reviewed by the courts, this plan doesn’t develop or add to these mandates — a plan that every one Individuals, hopefully, can rally round.”

Federal Vaccine Mandate Authorized Challenges Replace

On Tuesday, November 30, the Biden Administration was blocked from implementing two mandates requiring tens of millions of American staff be vaccinated towards COVID-19.  U.S. District Decide Terry Doughty in Monroe, Louisiana, quickly blocked the Facilities for Medicare & Medicaid Providers (CMS) from implementing its vaccine mandate for well being care staff till the courtroom can resolve authorized challenges.  This keep applies nationwide, besides in 10 states the place the CMS was already prevented from implementing the rule because of a previous order from a Federal choose in St. Louis.  Decide Doughty wrote in his opinion,

There isn’t a query that mandating a vaccine to 10.3 million healthcare staff is one thing that must be carried out by Congress, not a authorities company.”

The mandate for well being care staff would have required first pictures by December 6, with absolutely vaccination required by January 4.

Individually, U.S. District Decide Gregory Van Tatenhove in Frankfort, Kentucky, blocked the Biden Administration from implementing a regulation that new authorities contracts should embody clauses requiring that contractors’ staff be vaccinated.  This resolution applies to 3 states that had filed the lawsuit difficult the Federal Contractor and Subcontractor mandate – Kentucky, Ohio and Tennessee; this go well with is one of at the least 13 authorized challenges nationwide towards this mandate.

In the meantime, the Sixth Circuit Courtroom of Appeals primarily based in Cincinnati – which was chosen to preside over litigation associated to the Occupational Security and Well being Administration’s (OSHA) Emergency Short-term Commonplace (ETS) that requires firms with at the least 100 staff to mandate COVID-19 vaccinations or undergo weekly testing and masks necessities – has set a briefing schedule that runs via December 10.  Final week, OSHA requested the Sixth Circuit to dissolve or modify the keep imposed by the Fifth Circuit Courtroom of Appeals.  The Sixth Circuit is unlikely to take additional motion till roughly mid-December.

Notable Labor Division Developments

Amid the authorized challenges, on November 30, OSHA extended the public comment period for the obligatory COVID-19 vaccination or testing ETS to January 19, 2022.  The Federal Register published the general public remark interval extension on December 3.

On December 1, the Labor Division introduced a Notice of Proposed Rulemaking searching for public touch upon its proposal to change the methodology used to find out the hourly antagonistic impact wage charges (AEWRs) for the H-2A program.  AEWRs are the minimal hourly wage charges the Division has decided have to be provided and paid by employers to H-2A staff and staff in corresponding employment, in order that the wages of staff in the US equally employed won’t be adversely affected.  events have till January 31, 2022, to submit feedback.

On December 2, the Labor Division prolonged the general public remark interval on its Advance Notice of Proposed Rulemaking for warmth damage and sickness prevention in outside and indoor work settings to January 26, 2022.  OSHA doesn’t at present have a heat-specific customary to defending staff going through these situations.  The 30-day extension permits the company extra time to assemble extra data and knowledge.

Additionally on December 2, the Labor Division announced it had launched an online portal via which Federal Authorities contractors and subcontractors can certify compliance with annual Affirmative Motion Program necessities.  Lined Federal contractors and subcontractors could register on the portal starting February 1, 2022.  The portal’s certification options shall be obtainable starting on March 31, 2022.

Different Notable COVID-19 Developments

On November 30, the U.S. Meals & Drug Administration’s (FDA) Antimicrobial Medication Advisory Committee (AMDAC) voted 13-10 to approve the use of molnupiravir, an antiviral tablet produced by Ridgeback and Merck, in treating COVID-19.  Molnupiravir can cut back the relative danger somebody will progress to extreme illness or demise by about 30 %.  To be efficient, the tablets have to be taken inside 5 days of the beginning of COVID-19 signs.

Amid the unfold of Omicron, Novavax has but to file emergency authorization with the FDA for its COVID-19 vaccine, regardless of having filed regulatory submissions in different extremely vaccinated nations, reminiscent of Australia, New Zealand, the European Union and the UK.  In August, the corporate indicated it will prioritize regulatory submissions in nations with pressing wants.  Nearing the top of 2021, the corporate says it is able to produce 150 million doses per 30 days, having established a sturdy world provide chain succesful of manufacturing the vaccine throughout a quantity of websites around the globe.

In the meantime, reports emerged final week that scientific trial knowledge of the CoVac-1 vaccine – developed and made by lecturers on the College of Tubingen, in Germany – creates T-cells towards COVID-19 that in flip produces a greater immune response than the vaccines already in use.  Not like antibodies which decline over time, T-cells have the flexibility to remain within the bloodstream for a number of years.

Labor Division Management Updates

On December 2, the Senate Well being, Training, Labor, and Pensions (HELP) Committee superior the next nominations:

  • Lisa Gomez to function Assistant Secretary for the Worker Advantages Safety Administration on the Division of Labor by a vote of 12-10;

  • James Rodriguez to function Assistant Secretary for Veterans’ Employment and Coaching on the Division of Labor by a voice vote; and

  • Susan Harthill to function a member of the Occupational Security and Well being Assessment Fee by a voice vote.

Stronger Labor Provisions Sought

This week, Consultant Earl Blumenauer (D-Oregon), Chairman of the Home Methods & Means Commerce Subcommittee, mentioned he’s open to together with reauthorization of the Generalized System of Preferences (GSP) program and the Miscellaneous Tariff Invoice (MTB) within the bipartisan U.S. Innovation and Competitors Act (USICA), if lawmakers embody stronger labor and gender-related requirements for nations searching for duty-free remedy.

Previous to recessing, Senate Majority Chief Chuck Schumer (D-New York) and Home Speaker Nancy Pelosi (D-California) agreed to a convention on the Senate-passed USICA, after Chief Schumer sought to connect the measure to the NDAA.  Amongst different issues, the Senate’s USICA provisions embody a renewal of GSP, which lapsed on the finish of 2020, and main funding for the U.S. semiconductor business, which is struggling amid provide chain disruptions.  In the meantime, Congressional leaders have but to point a timeline for the China invoice convention, resulting in concern within the Senate that this could possibly be delayed till 2022, as lawmakers cope with the debt ceiling and different year-end priorities, such because the NDAA.

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