Congress Returns and the Administration Mandates Worker Vaccines

Congress returns from its summer recess and faces a busy fall agenda with some must pass legislation to avoid either a partial government shutdown or the government defaulting on its obligations. 

COVID-19 remains a significant factor for workforces and policy makers with the Biden Administration issuing a Path Out of the Pandemic, mandating vaccination or weekly testing for employers with at least 100 employees. 

Additionally, the Occupational Safety and Health Administration (OSHA) updated its workplace guidance, the Department of Labor recovered back wages from an employer that failed to include lump sum bonuses when calculating the overtime rate of FLSA non-exempt employees, and the Equal Employment Opportunity Commission (EEOC) providing another and final extension to those who need to file EEO-1 reports. 

Congress Returns to a Busy Agenda – Congress returns in September to a full calendar that includes:
• Funding the federal government – The federal fiscal year ends on September 30th and Congress needs to pass the twelve appropriation bills, pass a continuing resolution temporarily funding the government or face a partial government shutdown. As of early September, the House of Representatives has passed 9 of the 12 appropriations bills, while the Senate has not passed any. The last time Congress passed all appropriations bills prior to September 30th was in 1997.

• Debt ceiling extension or suspension – The Bipartisan Budget Act of 2019 enacted in August 2019, suspended the debt limit through July 31, 2021. On August 1, 2021, the debt limit reset to the previous ceiling of $22.0 trillion, plus the cumulative borrowing that occurred during the period of the suspension. The Treasury Department is taking extraordinary measures to continue funding government activities after August 1st but will exhaust these measures in October or November. 

If Congress doesn’t act before then, the federal government could default on its obligations. A group of Congressional Republicans have indicated that they will not vote to raise or suspend the debt ceiling.
 
• Infrastructure – The Senate passed a bipartisan infrastructure bill, and the House of Representatives will vote on the measure by September 27th. Assuming it passes any changes by the House of Representatives would need to be resolved with the Senate before it could be signed by President Biden. The bipartisan bill is limited to more traditional infrastructure such as roads, bridges, transit, etc. Both the Senate and House have passed reconciliation measures authorizing additional funding of $3.5 trillion for what is being referred as “human infrastructure”. Congressional committees are working on determining what will be included in this legislation and how the programs that are included will be paid for. The reconciliation measure only needs a majority vote in the Senate and is not subject to a possible filibuster. 

Administration Mandates Employer Vaccines – The Biden Administration has issued its Path Out of the Pandemic  that is designed to “reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements – these requirements will become dominant in the workplace.” The plan includes the following:

• Requiring all employers with at least 100 employees to ensure their workers are vaccinated or tested weekly.

• Requiring vaccinations for all federal workers and federal contractors.

• Requiring COVID-19 vaccinations for more than 17 million health care workers at Medicare and Medicaid participating hospitals and other health care facilities.

• Requiring employers to provide paid time off to get vaccinated or to recover from any post-vaccinations.

OSHA will be developing an emergency temporary standard for the workplace mandate for employers with at least 100 employees. Lawsuits will be filed challenging the President’s actions.
  
Occupational Safety and Health Administration (OSHA) Updates COVID Guidance – OSHA updated its COVID 19 guidance, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The updated guidance was done to reflect the most recent recommendations from the Centers for Disease Control (CDC) on mask and testing recommendations for fully vaccinated people. 
According to OSHA, “The updated guidance expands information on appropriate measures for protecting workers in higher-risk workplaces with mixed-vaccination status workers”, with a focus on industries including manufacturing, food processing, retail and grocery, “where there is often prolonged close contact with other workers and/or non-workers.”

Included in the most recent guidance are recommendations for fully vaccinated workers including:

• Wearing masks to protect those who are unvaccinated in areas of high community transmission; and

• Wearing masks for up to 14 days if they have close contacts with those who have COVID-19 unless they have a negative test 3 – 5 days after contact.

In higher risk workplaces with unvaccinated or other at-risk workers, OSHA’s guidance includes recommendations such as:
• staggering break times, providing temporary break areas and restrooms to avoid congregating during breaks
• staggering arrival and departure times
• adding floor markings and signs to encourage physical distancing 
• wearing masks whenever possible, and 
• improving ventilation

Bonuses Need to Be Included When Calculating Overtime – The U.S. Department of Labor announced the settlement of a Fair Labor Standards Act (FLSA) claim against a supermarket chain that failed to include lump sum bonuses when calculating the regular rate for determining overtime compensation of non-exempt employees. 

According to the DOL, the company increased the hourly rates of workers by $2/hour between March-May 2020. After that date, the employer decreased the hourly wage by $2 and paid lump sum bonuses on three separate occasions. The bonuses were not included when calculating overtime pay resulting in overtime rates being lower than what the FLSA requires. The employer agreed to pay $165,653 in back wages to 3,314 employees.

EEO-1 Filing Deadline Extended – The Equal Employment Opportunity Commission (EEOC) announced that it is extending the deadline for filing the EEO-1 form until October 25, 2021. The EEOC advised it was extending the deadline due to the “continuing impact of the pandemic on business operations.” EEOC cautions that this will be the final deadline extension.

The initial July 19th deadline was first extended until August 23rd and now until October 25th. The EEO-1 collects workforce data from private sector employers with at least 100 employees and federal contractors with 50 or more employees. The data reported includes the total number of full and part-time employees, their sex, race, and ethnicity and their job categories. Due to COVID-19, the EEOC delayed the EEO-1 data collection last year.


Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.