Beltway Buzz - September 2021 #4

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Congressional Update, Part I: Budget Brinksmanship. This time next week, we could be in the middle of a government shutdown. Always the masters of brinksmanship, our congressional legislators still do not have a deal to extend federal government funding beyond September 30, 2021. The U.S. House of Representatives this week passed a continuing resolution to extend government funding into December 2021, and increase the debt limit through December 2022. For months, Republicans have been arguing that because Democrats are pursuing a $3.5 trillion-spending package unilaterally, they must also extend the debt limit unilaterally. Who will blink first? Will Democrats strip the debt language from the legislation and agree to a “clean” continuing resolution, or will Republicans agree to the debt limit extension in order to keep the government running? In any event, the Office of Management and Budget has issued its “Agency Contingency Plans” in the event of a lapse in funding.

The last federal government shutdown occurred between December 22, 2018, and January 25, 2019, and it was one for the record books. Literally. The 35-day closure was the longest in the history of the United States.

Congressional Update, Part II: Immigration Provisions Nixed. Last week, the Buzz discussed Democrats’ efforts to include within their $3.5 trillion reconciliation package language that would provide pathways to citizenship for various groups of undocumented immigrants. This week, the U.S. Senate Parliamentarian Elizabeth MacDonough ruled that such language could not be included in a reconciliation bill because it is ancillary to federal budgetary matters: “Changing the law to clear the way to [lawful permanent residence] status is tremendous and enduring policy change that dwarfs its budgetary impact,” MacDonough wrote.

The Heat Is On! The Occupational Safety and Health Administration (OSHA) this week announced multiple initiatives to address excessive heat in the workplace.

  • Enforcement. OSHA recently implemented “an enforcement initiative to prevent and protect employees from serious heat-related illnesses and deaths while working in hazardous hot indoor or outdoor environments.” The initiative specifically calls for increased enforcement on “heat priority days” (i.e., “when the heat index exceeds 80°F”), and instructs OSHA area offices to:
  • “[p]rioritize inspections of heat-related complaints, referrals, and employer-reported illnesses”;
  • instruct worksite investigators “to be vigilant of circumstances where employees may be performing moderate or more strenuous work in hot conditions during heat priority days”; and
  • “[e]xpand the scope of other programmed or unprogrammed inspections to address heat-related hazards” that may be present.
  • NEP. OSHA is developing a national emphasis program (NEP), “which will target high-risk industries and focus agency resources and staff time on heat inspections.”
  • Rulemaking. OSHA announced that in October 2021 it would issue an advance notice of proposed rulemaking (ANPRM) “to gather diverse perspectives and technical expertise on topics including heat stress thresholds, heat acclimatization planning, exposure monitoring, and strategies to protect workers.” As readers of the Buzz already know, this really isn’t news, as OSHA forecasted the introduction of a heat standard in the 2021 Spring Regulatory Agenda (although the item was styled as a request for information, rather than an ANPRM).

Federal Contractor Vax Guidance? Today, September 24, 2021, is the date by which the Safer Federal Workforce Task Force is scheduled to release implementing guidance pursuant to President Joe Biden’s executive order aimed at requiring employees of federal contractors to be vaccinated against COVID-19. While we wait for this guidance, the task force has updated its recommendations in a way that could have a significant impact on the scope of coverage of the vaccination requirement. More specifically, pursuant to new frequently asked questions, “[a]gencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042,” such as “contracts under the Simplified Acquisition Threshold.” The simplified acquisition threshold is currently $250,000.

Administration Eases COVID-19 International Travel Restrictions. This week, the Biden administration announced that it would lift restrictions on international travel into the United States and instead require such travelers to demonstrate proof of vaccination against COVID-19. Andrew G. Drozdowski and Sarah P. Chiang have the details.

Joint-Employer Rule Effective Date Extended. The effective date of the U.S. Department of Labor’s (DOL) rescission of the Trump-era joint-employer rule has been pushed back from September 28, 2021, to October 5, 2021. According to the DOL, the slight delay is necessary to comply with the reporting requirements of the Congressional Review Act.

Buzz Slips on Tips. The Buzz jumped the gun last week discussing the imminent arrival of the DOL’s “dual jobs” tips regulation. Here is what happened. The Biden administration bifurcated its rulemaking effort to address the 2020 final tip rule, and the regulation that is on the move actually deals with civil money penalties, not dual jobs. The civil money penalties rule, which was published in the Federal Register on September 24, 2021, allows the DOL to assess penalties against employers that retain employees’ tips, even if not done “repeatedly or willfully.” The dual jobs proposal remains under review. The new rule on civil money penalties goes into effect on November 23, 2021.

Grassley Gears Up. While going for a jog today at 4 AM, Senator Chuck Grassley (R-IA) announced that he will seek an eighth term in the U.S. Senate in 2022. The Hawkeye State lawmaker turned 88 years old last Friday, September 17, and recently completed his annual tour—sometimes referred to as the “full Grassley”—of Iowa’s 99 counties (some view the tour as a genuine way to keep in touch with constituents, while others view it as a publicity stunt).

  • Grassley has been in elected office since 1959, when he was elected to the Iowa House of Representatives—a position he held until 1975. He then served in the U.S. House of Representatives from 1975 to 1981, at which time he began his first term as U.S. Senator.
  • Beginning with President Jimmy Carter, Grassley has served during eight different presidential administrations.
  • If Grassley wins and completes his term, he will overtake Strom Thurmond (D, R, SC) as the third longest serving senator in history at 48 years. Only Daniel K. Inouye (D-HI) (nearly 50 years) and Robert C. Byrd (D-WV) (51 years) will have served longer. If Senator Patrick Leahy (D-VT) runs and wins in 2022, and serves his full term, he will overtake the top spot at 54 years.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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