IHMM Today November 16, 2021

Beltway Buzz – Ogletree & Deakins

Infrastructure Bill Passes—Now What? Both the U.S. Senate and U.S. House of Representatives are out this week. But before they left for home, on November 5, 2021, the House of Representatives passed the Infrastructure Investment and Jobs Act by a vote of 228–206 (13 Republicans voted “yea,” while 6 Democrats voted “nay”). The $1.2 trillion bill, which includes approximately $550 billion in new federal spending, invests in roads, bridges, railways, ports, waterways, public transit, airports, and broadband internet, among other projects. President Joe Biden is expected to sign the bill into law on Monday, November 15, 2021. Up next in the House is the Build Back Better Act—Democrats’ major social spending initiative, which includes provisions such as a federally funded four-week paid leave program and dramatic new penalties, as well as increases to existing statutory amounts, for employer violations of various federal labor laws. Speaker Nancy Pelosi has promised that the House will pass the bill before Thanksgiving, perhaps during the week beginning November 15.

Federal Vaccine Mandate News. As employers across the country contemplate their vaccination obligations under various federal mandates, ongoing legal challenges and updates to those obligations make for an ever-changing compliance landscape. Three major developments occurred this week:

• OSHA ETS Stayed. Just one day after the Occupational Safety and Health Administration (OSHA) published its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), the Fifth Circuit Court of Appeals stayed implementation of the regulation pending further litigation. The court has not issued a decision on whether to issue a preliminary injunction nationwide, though the decision is expected shortly. Challenges to OSHA’s COVID-19 vaccination and testing ETS have also been filed in the Sixth, Seventh, Eighth, and Eleventh circuits, and the cases appear headed for the U.S. Judicial Panel on Multidistrict Litigation and consolidation before a single circuit court.
• Federal Contractor Vax Deadline Moved. Federal contractors were scratching their heads this week wondering about the legal effect of a fact sheet released by the White House on November 5, 2021, that stated that employees of federal contractors would be required to be vaccinated by January 4, 2022. (Pursuant to Executive Order 14042 and its implementing guidance, this vaccination deadline had been December 8, 2021.) These inconsistencies were cleared up on November 10, 2021, when the Safer Federal Workforce Task Force guidance was amended to state, “Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than January 18, 2022.”
• CMS Vaccine Mandate Challenged. On November 10, 2021, 10 states filed a lawsuit in the U.S. District Court for the Eastern District of Missouri challenging the Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate for healthcare workers.

NLRB Update. Not to be outdone by federal workplace safety news, the National Labor Relations Board (NLRB) this week announced these policy developments:

• On November 10, 2021, the operations-management division of the NLRB’s Office of the General Counsel issued a memorandum providing guidance on unionized employers’ duty to bargain over the implementation of OSHA’s vaccination and testing ETS. The memo states, “Although an employer is relieved of its duty to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally so long as it has some discretion in implementing those requirements.” Where the ETS does not allow for employer discretion “the employer is nonetheless obligated to bargain about the effects of the decision.”
• Also on November 10, 2021, the Board solicited public input on whether it should “establish a practice of awarding a fuller accounting of ‘consequential damages,’ in addition to loss of earnings and benefits, to employees who suffer unfair labor practices.” The Board’s remedies for unlawful terminations traditionally include reinstatement and back pay. Incorporating consequential damages as part of this economic relief could require payment of health care expenses or loan defaults that may result due to an unlawful discharge.
• On November 8, 2021, NLRB General Counsel Jennifer Abruzzo issued a memorandum entitled “Ensuring Rights and Remedies for Immigrant Workers Under the NLRA.” The memo outlines various forms of immigration-related relief that the general counsel will seek to protect immigrant workers who are victims of workplace intimidation and retaliation related to their immigration or work-authorization status, or for those employees who assist an NLRB investigation or litigation. The memo follows on the October 12, 2021, U.S Department of Homeland Security memo regarding immigration-related worksite enforcement.

Labor and Employment Agencies Announce Joint Anti-Retaliation Initiative. Speaking of agency cooperation, the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL) and the NLRB this week announced “a joint initiative to raise awareness about retaliation issues when workers exercise their protected labor rights.” On November 17, 2021, the agencies will host a “virtual dialogue with the employer community focused on the importance of workers’ anti-retaliation protections for those exercising their rights, and the agencies’ shared commitment to vigorous enforcement.”

OFCCP Proposes Rescinding 2020 Religious Exemption Rule. On November 9, 2021, the Office of Federal Contract Compliance Programs (OFCCP) issued a proposal to rescind a 2020 rule that purported to establish “appropriate protections for [federal contractors’] autonomy to hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors.” The notice of proposed rulemaking (NPRM), which has been under review at the Office of Information and Regulatory Affairs since March of 2021, would rescind the 2020 final rule in its entirety because, in part, it “permits a contractor whose purpose and/or character is not primarily religious to qualify for the Executive Order 11246 religious exemption.” The NPRM also argues that the 2020 rule inappropriately “retreats from the general principle that qualifying religious employers are prohibited from taking employment actions that amount to discrimination on the basis of protected characteristics other than religion, even if the decisions are made for sincerely held religious reasons.” Comments on the proposal are due on or before December 9, 2021.

Against the Grain. November 9, 2021, marked the 79th anniversary of the Supreme Court of the United States’ decision in Wickard v. Filburn, a seminal case interpreting the U.S. Constitution’s commerce clause (which grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”). Under the Agricultural Adjustment Act of 1938, the federal government set limitations on wheat production in order to stabilize the crop’s supply and price.

When Ohio farmer Roscoe Filburn grew more wheat on his farm than was permitted under the act, he was ordered to pay a fine. Filburn argued that he had not sold the excess wheat and that he had used it only to feed the animals on his own farm, thereby putting his activity beyond the scope of Congress’s power to regulate interstate commerce. The Supreme Court disagreed with Filburn, ruling, “This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.” Wickard v. Filburn kicked off a decades-long period of the Court’s willing deference to Congress’s power to regulate economic activity under the Constitution’s commerce clause. It wasn’t until 1995, in United States v. Lopez, that the Supreme Court invalidated a law of Congress under the commerce clause.

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