Beltway Buzz, February 3, 2023

The Pandemic Is Dead! Long Live the Pandemic! This week, the U.S. House of Representatives passed a resolution to immediately end the COVID-19 national emergency, as well as a bill to end the COVID-19 public health emergency. Of course, these measures won’t go anywhere in the U.S. Senate. Perhaps the bigger story, though, was the White House’s statement in opposition to both measures, noting, “the Administration’s plan is to extend the emergency declarations to May 11, and then end both emergencies on that date.”

The administration’s plans to end the emergency actions is interesting to the Buzz, in part because the Occupational Safety and Health Administration (OSHA) is about to finalize a permanent COVID-19 standard in healthcare settings. (The standard has been awaiting final approval by the Office of Information and Regulatory Affairs [OIRA] since December 7, 2022.) From a political optics standpoint, planning to terminate the two pandemic emergencies while moving forward with a pandemic workplace safety standard seems a bit of a contradiction. Of course, an active national emergency is not a prerequisite for OSHA’s rulemaking, but the two matters could create some political dissonance for the administration. The Buzz will be watching to see how this all shakes out.

OSHA Issues New Enforcement Guidance. While OSHA waits for OIRA to finalize its review of the final healthcare COVID-19 standard, it is wasting no time in stepping up its enforcement efforts. Late last week, OSHA announced that it would expand the application of “instance-by-instance” citations, currently limited to egregious willful citations, to include “citations for high-gravity serious violations of OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit required confined spaces, lockout tagout, and other-than-serious violations of OSHA standards specific to recordkeeping.” The policy goes into effect on March 27, 2023. John D. Surma has all the details on this new policy and what it means for employers.

FTC Noncompete Update. This week, a group of one hundred trade associations sent a letter to the Federal Trade Commission (FTC) requesting a sixty-day extension of the public comment deadline (currently set for March 20, 2023) for the FTC’s proposed rule that would prohibit most noncompete agreements between employers and workers. The letter notes that the business community needs more time to properly assess the sweeping scope of the proposal. The Buzz will be monitoring the FTC’s response.

EEOC Holds Hearing on AI in Workplace. On January 31, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) held a hearing, titled, “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier.” As the Buzz noted several weeks ago, the Commission has included potential discrimination involved with the use of automated systems and artificial intelligence (AI) as key priorities in its draft strategic enforcement plan. At this week’s hearing, business advocates touted the benefits of AI and automated systems, such as their potential to improve efficiency and reduce unconscious bias in workplace decisions. Some witnesses viewed state and local attempts to regulate in the area as potentially useful ways to test what works and what doesn’t, while others cautioned against a rise of patchwork requirements across jurisdictions. Recommendations for potential guardrails on the use of such systems included a disclosure regime by which employers would be required to provide employees and applicants with notice that they have been subject to AI and automated systems in the workplace. Requiring validation of algorithmic decision-making tools prior to their use was another theme. Jesse R. Dill and Simone R. D. Francis have the details.

Even if the EEOC is interested in regulating in this space, there are two important things to keep in mind. First, any action by the EEOC will likely have to wait for the current 2–2 Democratic/Republican deadlock on the Commission to break—perhaps with the confirmation of nominee Kalpana Kotagal. Second, while the Commission has the authority to issue rules under the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act, the Commission lacks the power to promulgate regulations under Title VII of the Civil Rights Act of 1964. Thus, the Commission’s ability to regulate in this space is limited.

NLRB Election Proposal Moves Forward. February 2, 2023, was the deadline for the regulated community to submit comments in response to the National Labor Relations Board’s (NLRB) so-called “Fair Choice and Employee Voice” proposal. Among the groups filing comments was the Coalition for a Democratic Workplace, which asked the Board to withdraw the proposal because “[a]ll three proposed Rules would undo important improvements and clarifications to the Board’s representation case practices and procedures, imperil employees’ right of free choice in representational matters, and disrupt the Board’s current representation processes.” Issuance of a final rule is not expected for at least several months.

I’m Just an (Unconstitutional) Bill. Schoolhouse Rock!, the acclaimed animated children’s series, debuted on ABC fifty years ago this week. The show’s short, educational episodes—which ran during Saturday morning television programming from 1973 to 1985 and again from 1992 to 2000—covered everything from science and math to history and civics. At the Buzz, we are particularly fond of the “I’m Just a Bill” segment, which explains in a catchy song how legislation in the U.S. Congress becomes law. What might be forgotten, however, is that this educational civics lesson focused on an imaginary bill that was, at best, borderline unconstitutional. The clip showed federal legislators drafting the following bill: “School bus must stop at railroad crossing.” Toddler textualists and even those with the most expansive view of the Constitution’s Commerce Clause would probably agree that it is beyond Congress’s power to pass such a bill.