Vaccine-or-Testing ETS Remains in Limbo

The 6th U.S. Circuit Court of Appeals has been randomly selected to hear the consolidated legal challenges to the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS) on the Biden administration’s vaccine-or-testing mandate for employers with 100 or more workers. 

The 6th Circuit will be authorized to uphold or lift the 5th Circuit’s order halting the mandate. OSHA acknowledged the 5th Circuit’s ruling by suspending activities related to the implementation and enforcement of the ETS pending further litigation. On Nov. 23, the administration asked the 6th Circuit to lift the order blocking the ETS. 

In Congress last week, Senate Minority Leader Mitch McConnell, R-Ky., and Sen. Mike Braun, R-Ind., filed a resolution backed by all 50 Republican senators to disapprove the ETS under the Congressional Review Act, which allows Congress to strike down regulations if both chambers and the president agree. The House version of the resolution was co-sponsored by 173 members. 

Implementation and enforcement of the ETS is delayed pending further court order. Litigation will determine if the ETS is upheld, modified or struck down. If all or part of the ETS is upheld, the implementation and compliance requirements will be determined by the 6th Circuit or the U.S. Supreme Court. 

For more information on the ETS, including guidelines for its implementation, visit SHRM’s COVID-19 vaccination resources center.

March Dates Announced for WPC 2022

It’s time to make plans for the premier workplace policy event.

SHRM will be hosting the Workplace Policy Conference 2022 in Washington, D.C., from March 27-29, and we invite you to reserve your spot today.

The last two years have brought unprecedented changes to the workplace, and policymakers continue to make major decisions that impact every organization. As an experienced advocate for the HR profession, your voice is critical to shaping the future of work.

It’s the ideal time to cause the effect. At WPC, attendees will:

  • Hear directly from public officials and experts on changes to workplace policies.
  • Find out what’s next for public policy and how to shape it for the better.
  • Engage with U.S. senators and representatives to build meaningful and productive relationships with key decision-makers.
  • Catch up with other experienced advocates and expand their network.

Register for WPC 2022 today!

Mark Your Calendars: SHRM External Affairs Webcast on Dec. 2

Join the SHRM External Affairs team and U.S. Equal Employment Opportunity Commission Vice Chair Jocelyn Samuels for our fourth and final quarterly webcast of the year on Dec. 2 at 4 p.m. ET.

Discussion topics will include the latest workplace policy and regulatory updates, new and ongoing SHRM initiatives, and other important advocacy news. Registration is open now, and more details will be announced in the coming days. 

Register for the webcast.

SHRM: Build Back Better Act Could Be Better

SHRM Chief of Staff and Head of Government Affairs Emily M. Dickens wrote to Speaker of the House Nancy Pelosi, D-Calif., and Minority Leader Kevin McCarthy, R-Calif., on Nov. 18 to recommend changes to provisions in H.R. 5376, the Build Back Better Act.

Dickens cited the impact of the bill’s proposed paid family leave provisions on American employers as a concern.

“This legislation, despite its recognition of the financial burden faced by employers, creates a federal program that is misaligned with the Family and Medical Leave Act and out of touch with the diversity of this country’s workplaces,” she wrote. “Additionally, there are provisions that increase health care costs, upset the balance of labor-management relations, and propose exorbitant civil liabilities for employers of all sizes.”

The letter also recognized the potential benefit of provisions related to employers’ ability to access talent. Dickens urged congressional leaders to “find more balance by acknowledging that meeting the needs of our country’s workplaces requires flexibility.”

The Build Back Better Act heads to the Senate after passing the House on Nov. 19 by a vote of 220-213. The bill is expected to undergo significant modifications in the Senate.

SHRM Urges Congress to Extend CARES Act Provisions

SHRM sent letters to House and Senate leaders on Nov. 10 seeking the extension of sections of the Coronavirus Aid, Relief and Economic Security (CARES) Act that temporarily increased employee access to telehealth services. 

In the letters, SHRM expressed support for the extension of pre-deductible telehealth services for high-deductible health plans and health savings accounts. 

SHRM’s Dickens also addressed access to telehealth services as an excepted employee benefit. “Flexibilities included in the CARES Act temporarily allow all workers, including seasonal and part-time workers, to access telehealth as an excepted benefit,” she wrote. “A permanent solution would allow employers to expand access to telehealth as an excepted benefit beyond the current public health emergency, and doing so would allow more workers to access telehealth services.”

Women’s Congressional Policy Institute Highlights SHRM Research

SHRM Lead Researcher Kerri Nelson, Ph.D., joined the Women’s Congressional Policy Institute in Washington, D.C., for a briefing on Nov. 16 called “The Impact of the Pandemic on Caregiving and Working Women.” 

Nelson presented findings from several SHRM studies, including the following:

  • 1 in 5 U.S. workers personally know a woman who voluntarily left the workforce at some point during the pandemic due to caregiving responsibilities.
  • Nearly one-third of workers with school-age children worry that if schools return to remote learning, they will have to quit their job.
  • 32 percent of female managers with caregiving responsibilities say they were penalized or would have been penalized for asking for an accommodation during the pandemic, compared with 22 percent of male managers with caregiving responsibilities.

Nelson was joined by Rhonda Richards of AARP and Lynette Fraga, Ph.D., of Child Care Aware of America. Rep. Lucy McBath, D-Ga., vice chair of the Congressional Caucus for Women’s Issues, also delivered remarks from Capitol Hill.

SHRM VLBM 2021 Capitol Hill Advocacy Day

SHRM hosted a virtual Capitol Hill Advocacy Day as part of the annual Volunteer Leaders’ Business Meeting (VLBM) Nov. 8-10. 

Across the country, SHRM state council legislative directors met virtually with policymakers to discuss important workplace policy issues. They urged lawmakers to support the passage of the Commonsense Reporting Act and asked Congress to urge the administration to incorporate revisions to the Occupational Safety and Health Administration’s ETS on the COVID-19 vaccine-or-testing mandate.

SHRM advocates are helping HR lead the conversation in Washington and state capitals on policy issues that impact the lives and livelihoods of over 115 million workers and families globally. 

Join SHRM’s Advocacy Team by texting ATEAM to 52886 or signing up online.

Protect Older Job Applicants Act Passes House of Representatives

The Protect Older Job Applicants Act (H.R. 3992), introduced by Rep. Sylvia R. Garcia, D-Texas, passed the House of Representatives on Nov. 4 by a vote of 224-200.

The bill would protect job applicants under the Age Discrimination in Employment Act by barring employers from asking an applicant’s age on a job application.

SHRM surveyed its members in late July and found that 79 percent of organizations do not ask for date of birth on a job application and 68 percent do not ask for a graduation date.

Rep. Scott, Committee Leaders Introduce Retirement Savings Bill

The bipartisan Retirement Improvement and Savings Enhancement (RISE) Actwas introduced on Nov. 8 by House Education and Labor Committee Chairman Bobby Scott, D-Va.; Ranking Member Virginia Foxx, R-N.C.; Health, Employment, Labor and Pensions Subcommittee Chair Mark DeSaulnier, D-Calif.; and Subcommittee Ranking Member Rick Allen, R-Ga.

The RISE Act, H.R. 5891, seeks to expand workers’ access to a secure retirement by establishing an online “Retirement Lost and Found” database at the U.S. Department of Labor to allow workers to track retirement savings as they change jobs.

It would also ensure more part-time workers are able to join retirement savings plans, allow 403(b) retirement plans to participate in multiemployer plans, and simplify reporting and disclosure requirements for workers, among other changes.

Employee Retention Tax Credit Ends Early

The Employee Retention Tax Credit (ERTC), created in March 2020 to help companies retain workers during the COVID-19 pandemic, will end retroactively on Sept. 30.

The ERTC was originally intended to expire at the end of the year, but the bipartisan infrastructure bill signed into law by President Joe Biden on Nov. 15 included language ending it three months early.

Businesses can still claim the tax credit for three years.

EEOC Issues Guidance on COVID-19 Retaliation

On Nov. 17, the U.S. Equal Employment Opportunity Commission (EEOC) released the following updated technical assistance on retaliation related to the COVID-19 vaccine:

  • Employers may not punish an employee for “speaking out about or exercising rights related to workplace discrimination,” which are protected activities.
  • Employers may discipline employees who engage in protected activities provided the disciplinary action would have been taken regardless of the protected activity.
  • Determining if retaliation has occurred requires a fact-specific inquiry into whether an employer’s action could deter someone from engaging in protected activity.
  • Employers must consider reasonable accommodations to their vaccine mandates based on medical reasons or sincerely held religious beliefs.
  • Employers may ask probing questions concerning accommodation requests to determine their validity and deny those requests due to undue hardships.

Also on Nov. 17, the EEOC, the National Labor Relations Board (NLRB) and the U.S. Department of Labor launched a joint initiative to raise awareness about retaliation issues when workers exercise their protected labor rights.

According to EEOC Chair Charlotte Burrows, retaliation is an urgent problem in the American workplace, with cases filed with the EEOC rising every year for the last 20 years. She said the cross-agency initiative hopes to “form a bulwark against unlawful retaliation.”

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SHRM has an unwavering commitment to focus on policy, not politics. We believe in our ability to find consensus when we bring all sides to the table for critical discussions of issues impacting work, workers and workplaces.

Together, we are championing policies that will help organizations and people thrive to create better workplaces and a better world.

Showcase your commitment to Policy, Not Politics, with a brand-new line of apparel and merchandise available for order at the SHRMStore. Get FREE SHIPPING on apparel and accessories when you shop at the SHRMStore through May 31.

Advancing Workplace Issues in 2021

SHRM is proud to be working with several organizations to highlight workplace issues in 2021. They include Fratelli Group, NAICU, Palladian Hill Strategies, Seyfarth Shaw LLP and Viatris.

As the Voice of All Things Work, SHRM pursues nonpartisan public policy to promote flexible, inclusive and equitable workplaces that help business thrive as talent is tapped, trained and empowered to reach its full potential. Policy not politics.

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