Beltway Buzz, July 30, 2021

Infrastructure Bill: Game On! After weeks of negotiating, there is finally bipartisan agreement in the U.S. Senate to move forward with a $550 billion bill to fund the repair and construction of physical infrastructure such as roads, bridges, rail lines, and water systems. There is no text for the bill yet, but legislative text is expected this weekend, and the Senate is expected to work on the bill next week. As the Buzz has discussed recently, this bipartisan effort is separate from the unilateral approach that Democrats are expected to take with regard to “human infrastructure” (e.g., paid leave, child care, and Medicare expansion). The U.S. Chamber of Commerce has voiced its support for the framework.

Biden to Mandate Vaccines for Federal Employees. With concerns rising about the highly infectious Delta variant, President Joe Biden this week issued a fact sheet that included the following:

[E]very federal government employee and onsite contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.

At the time of this writing, it is not yet clear whether an official executive order will follow this fact sheet or how these new requirements will be legally implemented. Labor unions, which are often supportive of the president’s policies, are divided regarding the vaccination requirement. The AFL-CIO supports mandatory vaccinations, while the American Federation of Teachers, International Association of Fire Fighters, and other unions oppose or have declined to endorse vaccine mandates.

Finally, pursuant to the fact sheet, the U.S. Department of the Treasury and the Internal Revenue Service will expand the American Rescue Plan Act’s paid leave tax credits to allow employers to “claim tax credits equal to the wages paid for providing paid time-off to employees to take a family or household member or certain other individuals to get vaccinated, or to care for a family or household member or certain other individuals recovering from the vaccination.”

FLSA Joint Employer Rule Nixed. On July 30, 2021, the U.S. Department of Labor (DOL) published a final rule in the Federal Register rescinding the Trump-era DOL’s Fair Labor Standards Act (FLSA) joint employer rule, which was finalized on January 16, 2020. (Much of the rule was vacated by a federal district court’s decision, which is currently on appeal before the U.S. Court of Appeals for the Second Circuit.) The DOL reasoned that “[t]he Rule was inconsistent with the FLSA’s text and purpose.” The final rule becomes effective on September 28, 2021.

Changes Coming to the NLRB. Changes in the leadership ranks at the National Labor Relations Board (NLRB) are certainly happening quickly. This week, NLRB General Counsel Jennifer Abruzzo tapped her acting predecessor, Peter Sung Ohr, to stay on as deputy general counsel. (Recall that Abruzzo and Ohr are only at the NLRB’s Office of the General Counsel because of President Biden’s unprecedented Inauguration Day sacking of then-general counsel Peter Robb on January 20, 2021.) Further, on July 28, 2021, the U.S. Senate confirmed Gwynne Wilcox and David Prouty—largely along party lines—to be members of the Board. Wilcox will immediately fill the current vacant seat on the Board, while Prouty will join following the expiration of Member William Emanuel’s term on August 27, 2021. Once Prouty is sworn in, Democrats will have majority control of the Board. Employers should expect a busy second half of the year at the NLRB.

OSHA to Address Mechanical Power Presses. This week, the Occupational Safety and Health Administration (OSHA) issued a request for information (RFI) on issues relating to its 1971 standard for mechanical power presses. Specifically, OSHA seeks feedback from stakeholders on whether its standard should jibe with the more recently updated American National Standards Institute (ANSI) industry consensus standard for mechanical power presses. Comments are due on or before October 26, 2021.

Nominations Update. In addition to the confirmation of nominees to the NLRB, there was more news this week on the nominations front.

• The U.S. Senate moved closer to a confirmation vote on the nomination of Ur Mendoza Jaddou to serve as U.S. Citizenship and Immigration Services (USCIS) director. If her nomination receives approval, Jaddou will be the first Senate-confirmed USCIS director since L. Francis Cissna left office on June 1, 2019.
• President Biden will nominate Lisa Gomez to head the DOL’s Employee Benefits Security Administration. Gomez is currently a partner at a law firm that bills itself as “devoted exclusively to the interests of labor and working people.”

RIP, Mike Enzi. Former U.S. senator from Wyoming, Mike Enzi, died on July 26, 2021, after being injured in a bicycle accident. He was 77 years old. A Republican, Enzi represented the Equality State in the U.S. Senate for four terms, from 1997 until his retirement in early 2021. During his tenure, Enzi chaired the U.S. Senate Committee on the Budget from 2015 until 2021, becoming the first certified public accountant to hold the gavel in the powerful committee. The Buzz remembers the former senator in particular for his time as chair, ranking member, and member of the U.S. Senate Committee on Health, Education, Labor and Pensions. While serving as the ranking member of the committee, Enzi voiced his concern over unconstitutional recess appointments to the NLRB, the Board’s failed notice posting rule, and the Board’s ambush election regulations, among other matters.