Beltway Buzz, January 14, 2022

SCOTUS Halts OSHA’s Vax-or-Test ETS (but Greenlights CMS Rule). On January 13, 2022, the Supreme Court of the United States stayed the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination-or-testing emergency temporary standard (ETS) pending legal review in the Sixth Circuit Court of Appeals. In issuing the stay, the Court ruled that the challengers to the ETS were likely to prevail because the ETS exceeded OSHA’s statutory authority under the Occupational Safety and Health Act to establish workplace safety standards:

The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.

The Court further stated that “no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.”

Melissa A. Bailey and John F. Martin have the details on the Court’s decision on OSHA’s ETS.

On the other hand, the Court allowed the Centers for Medicare and Medicaid Services to proceed with enforcement of its vaccine rule because it is within the scope of its statutory authority:

Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” […] The rule thus fits neatly within the language of the statute.

James M. Paul and Jody Ward-Rannow have the details on the Court’s ruling on CMS’s vaccine mandate.

Legal arguments—including those relating to the vaccination requirement applicable to federal contractors—will continue in the lower courts.

Senate Filibuster on the Brink? At a speech this week in Atlanta, Georgia, President Biden expressly advocated for changing the U.S. Senate’s legislative filibuster rule in order to advance legislation relating to election reform. The speech comes ahead of a potential test for the filibuster, as Senator Chuck Schumer is expected to schedule votes on both the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act in the coming days (neither of which is expected to receive the 60 votes necessary to overcome a legislative filibuster). As of now, Senator Joe Manchin (D-WV) and Senator Kyrsten Sinema (D-AZ) remain opposed to changing the legislative filibuster, even in the context of election reform legislation. In a speech delivered on January 13, 2022, Senator Sinema stated, “Eliminating the 60-vote threshold will simply guarantee that we lose a critical tool that we need to safeguard our democracy.” Of course, the filibuster is a significant reason why the Protecting the Right to Organize (PRO) Act has floundered in the Senate (though less than half of all senators are cosponsors of the bill).

Administration Outlines COVID-19 Test Reimbursement. Beginning January 15, 2021, if you are able to get your hands on an over-the-counter (OTC), at-home COVID-19 test, you may be entitled to reimbursement from your health insurance provider. This is according to new guidance issued this week by the U.S. Department of Labor (DOL), U.S. Department of the Treasury, and U.S. Department of Health and Human Services (HHS). Pursuant to the guidance, healthcare plans must cover up to eight such tests per individual per month. Of course, testing for COVID-19 is a component of OSHA’s vaccination-or-testing emergency temporary standard, but the guidance states, “[P]lans and issuers are not required to provide coverage of testing (including an OTC COVID-19 test) that is for employment purposes.” As Timothy J. Stanton explains, it may not be so easy to draw the line between COVID-19 tests required for the workplace and those that individuals use for their own at-home diagnosis.

NLRB Partners With DOL, Forecasts Increased Scrutiny of Employer Handbooks. As expected, the National Labor Relations Board (NLRB) has continued to advance significant changes to federal labor law policy, including the following:

• NLRB and DOL: Let’s make a deal! William E. Collins, Jr. and Maggie (Hanrahan) Santen have an excellent analysis of the recent memorandum of understanding (MOU) between the Board and the DOL’s Wage and Hour Division (WHD). Pursuant to the MOU, the agencies will coordinate investigative and enforcement efforts with regard to, among other matters, “the identification and investigation of complex or fissured employment structures, including single or joint employer, alter ego, and business models designed to evade legal accountability, such as the misclassification of employees.” Along with this MOU, the Board is already teeing up changes with regard to its joint-employer and independent contractor analyses, and David Weil, who has been renominated to lead the WHD (more on this below), is one step closer to bringing back his “fissured workplace” theory to WHD, so this is a particular issue to watch.
• Board seeks input on workplace policies. The Board announced late last week that it would accept briefs from the public “to consider whether the Board should adopt a new legal standard to apply in cases where an employer’s maintenance of a facially-neutral work rule is alleged to violate Section 8(a)(1) of the National Labor Relations Act.” The invitation to file briefs proposes to revise or rescind a 2017 case that set forth a clear standard for employers to determine before the fact whether a particular workplace rule violates employees’ rights to engage in protected concerted activity. This 2017 standard was put in place in response to a line of jurisprudence in which “the Board became the federal employee-handbook police.” The current invitation tees up a potential standard that would permit the Board to second-guess employer workplace policies and find violations if there is any plausible interpretation that could remotely interfere with employee rights.

DOL Nominees Advance. On Thursday, January 13, 2022, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) advanced the nomination of David Weil to be administrator of the WHD. In the previous session of the U.S. Congress, the HELP Committee deadlocked 11–11 on Weil, but this time he made it through on an 11–10 vote. Now Weil is ready for a vote on the Senate floor, where he will likely need the support of all Democrats and Independents, as well as Vice President Kamala Harris. Because Weil previously served in this role, we know that he favors a broad test for joint-employer status and a narrow test for independent contractor status. Further, Weil spearheaded the 2016 changes to the regulations implementing the overtime provisions of the Fair Labor Standards Act that were eventually vacated. The DOL has forecasted that it will once again propose changes to those regulations, likely this spring.

The committee also voted to advance the following nominations:

• José Javier Rodríguez to be assistant secretary of labor for the DOL’s Employment and Training Administration
• Lisa Gomez to be assistant secretary of labor for the DOL’s Employee Benefits Security Administration
• Javier Ramirez to be the director of the Federal Mediation and Conciliation Service
• Linda Puchala to be a member of the National Mediation Board
• Susan Harthill to be a member of the Occupational Safety and Health Review Commission

EEOC and OFCCP Announce Equity Hiring Initiative. This week the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) announced a new joint program called the Hiring Initiative to Reimagine Equity (HIRE). According to the EEOC, “The Hiring Initiative to Reimagine Equity (HIRE) is a multi-year collaborative effort that will engage a broad array of stakeholders to expand access to good jobs for workers from underrepresented communities and help address key hiring and recruitment challenges.” As far as what employers can expect from HIRE, an accompanying fact sheet states, “The EEOC and OFCCP will convene a series of roundtables and meetings, as well as public forums to identify actionable strategies to promote organizational policies and practices that advance equity. The EEOC and OFCCP will develop resources such as guidance documents or promising practice resources.”

Regulatory Window Dressing. The Food and Drug Administration (FDA) finalized an important regulation this week. No, it is not a rule relating to COVID-19 vaccines or tests. It is about salad dressing. More specifically, the FDA finalized a rule revoking the standard of identity for French dressing. The final rule is remarkable for two reasons: (1) there has been a legal definition for “French dressing” maintained in the Code of Federal Regulations since 1950 (amended several times over the ensuing decades); and (2) the rule is in response to a petition that was originally filed in 1998! So why the sudden action this week? The existing definition of “French dressing” essentially described a basic vinaigrette, and consumers’ perception of French dressing has evolved over the years:

Most, if not all, products currently sold under the name “French dressing” contain tomatoes or tomato-derived ingredients and have a characteristic red or reddish-orange color. They also tend to have a sweet taste. Consumers appear to expect these characteristics when purchasing products represented as French dressing. Thus, it appears that, since the establishment of the standard of identity, French dressing has become a narrower category of products than prescribed by the standard.

Accordingly, the FDA “concluded that the standard of identity for French dressing no longer promotes honesty and fair dealing in the interest of consumers.” Thus, the definition of “French dressing” will no longer romaine in the Code of Federal Regulations.