Beltway Buzz, October 15, 2021

Congressional Update: Debt Limit Crisis and Reconciliation Plans. Both the U.S. Senate and U.S. House of Representatives were officially out this week, but the U.S. Congress still made some news.

• The House on October 12, 2021, passed a $480 billion increase in the debt limit to narrowly avoid a first-ever default on the nation’s debts. The Senate approved the increase on a party-line vote last week. As the Buzz previously mentioned, the fix is only temporary, and Congress will have to revisit the issue in December 2021 or January 2022.
• On October 11, 2021, Speaker Nancy Pelosi (D-CA) issued a “dear colleague” letter outlining the path forward for the Build Back Better Act (the “human infrastructure bill” that the Democrats are pursuing through the budget reconciliation process). Looking to trim the overall costs of the bill in order to achieve buy-in from all Democrats, Speaker Pelosi states in the letter, “Overwhelmingly, the guidance I am receiving from Members is to do fewer things well so that we can still have a transformative impact on families in the workplace and responsibly address the climate crisis.” What remains in the bill and what ends up on the cutting-room floor remains to be seen.

OSHA COVID-19 ETS Coming. The Occupational Safety and Health Administration (OSHA) sent the much-anticipated COVID-19 vaccination emergency temporary standard (ETS) to the Office of Information and Regulatory Affairs (OIRA) this week. With OIRA review being the last major step in the regulatory process, the ETS will likely be issued imminently. Even at this late stage, the substance of the ETS is not public. As a reminder, the ETS—which will be effective immediately upon publication in the Federal Register and will not be a proposed rule—is expected to require employers with 100 or more employees to have their employees vaccinated or submit to weekly testing.

Texas Showdown. Of course, the feds aren’t the only regulators making policies with respect to vaccines in the workplace. Tiffany Cox Stacy and Christine Bestor Townsend have an excellent breakdown of Texas Governor Greg Abbott’s recent prohibition on mandatory COVID-19 vaccination requirements. The feds’ going one way on vaccination requirements and Texas lawmakers’ going the other way has obviously created confusion for many employers and raised questions that will likely end up in the courts. The Buzz suspects that we will be hearing a lot about the United States Constitution’s supremacy clause in the coming months.

DHS Issues Memo on Worksite Raids … and More? On October 12, 2021, Secretary of Homeland Security Alejandro Mayorkas issued a memorandum entitled “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual.” The memo directs the leaders of U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP), to “no longer conduct mass worksite operations” and instead “maximize the impact of … [enforcement] efforts by focusing on unscrupulous employers who exploit the vulnerability of undocumented workers.” Part of the strategy includes potential relief from deportation to “[i]ncrease the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations.”

While the memo focuses on immigration-related worksite enforcement operations, reading between the lines perhaps signals a broader, more aggressive agency enforcement model that transcends the U.S. Department of Homeland Security (DHS). Indeed, the memo states, “[W]e must adopt immigration enforcement policies to facilitate the important work of the Department of Labor and other government agencies to enforce wage protections, workplace safety, labor rights, and other laws and standards.”

EBSA Proposes ESG Rule. The U.S. Department of Labor continues its efforts to reverse Trump-era policies. This week, the Employee Benefits Security Administration (EBSA) proposed rolling back regulations that require private-sector employee benefit plan fiduciaries to solely consider “‘pecuniary factors’” when making investments. Instead, the proposed rule “makes clear that climate change and other ESG [environmental, social, or governance] factors are often material and that in many instances fiduciaries to [sic] should consider climate change and other ESG factors in the assessment of investment risks and returns.” Stakeholder comments are due on or before December 13, 2021.

Congress and Influenza. COVID-19 is not, of course, the first public health crisis Congress has had to deal with. When the 1918 influenza pandemic struck, Washington, D.C., was hit hard. Just as the current Congress has adapted its rules and protocols to ensure legislators’ safety against COVID-19, the House of Representatives in 1918 took similar precautions against influenza. With many members, including Speaker James “Champ” Clark (D-MO) and Majority Leader Claude Kitchin (D-NC) absent because of illness, the House shuttered its doors and essentially stopped operating in the early part of October 1918. But with the need to take action to address the pandemic, the House met in mid-October to pass legislation to bolster the U.S. Public Health Service’s (PHS) efforts to combat the virus. However, with so many members ravaged by influenza (there were fewer than 50 members in attendance), the House did not have a quorum to pass the legislation. The problem was resolved on October 15, 1918—103 years ago today—when the few members present came to an agreement to pass a bill by unanimous consent. The resulting “Joint Resolution to Establish a Reserve of the Public Health Service,” which created a reserve corps of the PHS, represents an early attempt to address public health emergencies on a national scale.