US Federal Labor ViewpointsThis 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
  • Notable Labor Department Developments
  • COVID-19 Updates

U.S. lawmakers concluded their legislative work for 2021 this week, with both chambers of Congress recessing until after the New Year holiday.  Democrats in both chambers approved a measure this week that raised the U.S. debt limit to nearly $31 trillion, after the Senate approved legislation that allowed the limit to be increased once by a simple majority vote.  U.S. President Joe Biden signed the measure into law on Thursday.

On Thursday evening, President Biden indicated that Senate Democrats would need additional time in 2022 to advance his Build Back Better Act (BBBA), the $2.2 trillion social and climate spending package approved by the House in November that would move forward via the budget reconciliation process.  In providing a statement on the status of the ongoing negotiations, the President acknowledged that Senator Joe Manchin (D-West Virginia) continued to express concerns about the BBBA’s cost exceeding the $1.75 trillion framework that the White House agreed to this fall.  Meanwhile, the Senate Parliamentarian ruled this week against Democrats’ third attempt to include immigration provisions in the BBBA, a decision that will strip the language from the Senate version of the spending package.

U.S. Economy Update.  On December 15, the U.S. Federal Reserve announced plans to speed up the withdrawal of its extraordinary support for the American economy during the pandemic and suggesting the stimulus would end by March 2022.  Federal Reserve officials are forecasting that inflation will run higher next year than they had previously projected, backing away from the “transitory” characterization previously used to describe inflation increases seen this year in the United States.

Federal Vaccine Mandate Legal Challenges Update.  On Thursday, the Biden Administration asked the U.S. Supreme Court to reinstate a Federal mandate nationwide that health care workers be vaccinated against COVID-19, if they work at facilities participating in Medicare and Medicaid.  Lower courts suspended this mandate after 24 states filed lawsuits, with judges characterizing the rules too “vast.”  The Administration’s move came, after a three-judge panel of the U.S. Fifth Circuit Court of Appeals in New Orleans ruled that a lower court had the authority to block the Centers for Medicare & Medicaid Services (CMS) mandate in the 14 states[1] that had sued.  The CMS mandate is also blocked in 10 other states[2] by a November 29 ruling from a federal judge in St. Louis.  Also this week, a Texas-based federal judge issued a preliminary injunction blocking the CMS mandate for health care workers in that state.  This Wednesday ruling in Texas means the CMS vaccine mandate is now blocked in half of the 50 U.S. states.

With respect to the Biden Administration’s Occupational Safety and Health Administration’s emergency temporary standard (ETS) requiring employers with 100 or more employees to mandate vaccinations or testing, the Sixth Circuit decided on Wednesday to hear the case initially before a three-judge panel, rather than all 16 active judges on the court.  Late on Friday, the Sixth Circuit lifted the stay, allowing OSHA to move forward with its vaccine or test employer mandate that affects about 84 million American workers.

Separately, Indiana lawmakers are moving forward with House Bill 1001, teeing up the state’s vaccine mandate bill for action at the beginning of the 2022 legislative session in January.  The bill reportedly includes a provision that would place limitations on business vaccine mandates in the state of Indiana.  Instead of waiting until January, Indiana state lawmakers heard testimony on the legislation in a committee on Thursday.

On Thursday, the U.S. Marine Corps reported over 100 Marines were discharged for refusing to take the COVID-19 vaccine mandated by the Biden Administration.  The Navy also reported it had 5,731 unvaccinated sailors, as of last week, including 2,705 religious exemption requests.  While more than 96 percent of the Army’s 478,000 active-duty soldiers met the Administration’s vaccine mandate, reports noted two battalion commanders and four other Army officials have been relieved of their leadership positions, and 2,767 Army service members have received written reprimands for refusing the order.  The Air Force has discharged 27 service members for defying the Federal vaccine mandate.

Meanwhile, the Governors of Wyoming, Alaska, Iowa, Mississippi, and Nebraska sent a joint letter dated December 14 to U.S. Secretary of Defense Lloyd Austin asking him to reconsider the COVID-19 vaccine mandate for National Guard members.  The Governors noted that “directives dictating whether training in a Title 32 status (state duty) can occur, setting punishment requirements for refusing to be COVID-19 vaccinated, and requiring separation from each state National Guard if unvaccinated are beyond your constitutional and statutory authority.”  Texas Governor Greg Abbott (Republican) sent a separate letter to Secretary Austin on December 16, informing the Defense Secretary that he has ordered the head of the Texas National Guard, Maj. Gen. Tracy Norris, to not enforce the Federal mandate for Texas National Guard members, which number over 20,000.  These states join Oklahoma – Governor Kevin Stitt (Republican) wrote a letter to Secretary Austin on November 2, asking him to rescind the mandate for members of the Oklahoma National Guard – in challenging the vaccine mandate for National Guard members in their respective states.  More than 400,000 people serve in the National Guard.

Notable Labor Department Developments.  On December 10, the U.S. Department of Labor outlined its semi-annual agenda of regulations for the forthcoming year under the Biden Administration.  U.S. Department of Labor Assistant Secretary for Policy Raj Nayak noted the following at the release of the semi-annual agenda:

Through a careful process and public engagement, these regulatory actions will advance our mission to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States.”

On December 14, the Labor Department announced the award of a $3 million grant to the International Labour Organization (ILO) to improve compliance with international labor standards in the Democratic Republic of the Congo.  Funding will support efforts in the capital city of Kinshasa primarily, along with some pilot provinces across one or more economic sectors.

On December 16, the Labor Department published a final rule amending its regulations regarding the adjudication of temporary and seasonal need for employers seeking herding or production of livestock on the range job opportunities under the H-2A visa program.

COVID-19 Updates.  On December 14, President Biden said his Administration had ordered enough of Pfizer’s COVID-19 antiviral pill – Paxlovid – to treat 10 million Americans.  The company has reported trial data that reflects Paxlovid reduces the risk of hospitalization or death by 89 percent in high-risk adults.  Paxlovid is a combination of Nirmatrelvir, a new experimental medicine, and Ritonavir, an existing antiviral used against HIV, and is taken over five days.  Pfizer submitted its application to the US Food and Drug Administration (FDA) last month for emergency approval of the treatment and, in light of Omicron, is anticipating approval this month.  In anticipation of the approval, Pfizer CEO Albert Bourla shared with the media this week:

We have already shipped product into the U.S., so product will be available this month if it’s approved.”

On December 16, a U.S. Centers for Disease Control and Prevention (CDC) advisory panel recommended Pfizer/BioNTech or Moderna COVID-19 vaccine for adults, over Johnson & Johnson’s vaccine, after the agency reported the rate of a rare, but serious, blood-clotting condition was higher than previously estimated in both men and women, and in a wider age range.  Other countries, including Canada and the United Kingdom, have made similar recommendations.

[1] The 14 states that sued include Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.

[2] The 10 other states include Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.