The Washington Report
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December 15, 2021
Note to Subscribers
Due to the current environment, information is changing at a rapid rate. While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change or be revised after our publication deadline.
Judicial
Supreme Court Rejects Challenge to New York’s COVID-19 Health Care Worker Vaccine Mandate
On December 13, 2021, the Supreme Court released its opinion, Dr. A v. Hochul, allowing the COVID-19 vaccination mandate for health care workers in New York to remain in effect.
The Court opinion is available here.
Supreme Court Allows Abortion Clinics to Sue Over Texas Law but Allows Law to Remain in Effect; Court Rejects White House Appeal to Block Law
On December 10, 2021, the Supreme Court determined that Texas abortion clinics may sue over the state’s six-week abortion ban law (S.B. 8) which went into effect on September 1, 2021. However, the Court’s opinion (Whole Woman’s Health v. Jackson) allows the legislation to remain in effect as other litigation is pursued. S.B. 8 deputizes private citizens and authorizes “any person” to bring a lawsuit to enforce its terms. Among other provisions, the Texas law also allows for damage awards up to $10,000. Additionally, in a separate opinion released the same day (United States v. Texas), the Court rejected the Department of Justice’s appeal to block the Texas law.
The two Supreme Court opinions are available here and here.
COVID-19
EEOC Updates COVID-19 Technical Assistance; Clarifies When COVID-19 May Be Considered a Disability
On December 14, 2021, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance adding a new section (“N. - COVID-19 and the Definition of ‘Disability’ Under the ADA/Rehabilitation Act”) to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. According to the EEOC, the new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act, which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID-19 condition could be considered to have a disability under the laws the EEOC enforces.
Key information focuses on:
- In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
- An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks — with no other consequences — will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
- Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. However, employers can choose to do more than the ADA requires.
- An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.
The news release is available here.
The updated EEOC technical assistance is available here.
Senate Passes Bill Nullifying COVID-19 Vaccine-or-Test Mandate; President Would Veto
On December 8, 2021, the Senate passed with a 52–48 vote S.J. Res. 29, which provides for “congressional disapproval” of the rule submitted by the Department of Labor relating to the "COVID-19 Vaccination and Testing; Emergency Temporary Standard,” issued on November 5, 2021. With the action, the Senate declared that the COVID-19 vaccine-or-test mandate shall “have no force or effect.” In response to the bill’s passage, the White House issued a Statement of Administration Policy indicating the President will veto the bill if it passes both chambers of Congress.
The full text of S.J. Res. 29 is available here.
The White House Statement of Administration Policy is available here.
Other HR/Employment
Fall 2021 Regulatory Agenda Released
On December 10, 2021, the Biden Administration released its Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, which provides an updated report on the actions federal departments and administrative agencies (e.g., the Department of Labor (DOL), Equal Employment Opportunity Commission, Department of the Treasury, Department of Health and Human Services, Pension Benefit Guaranty Corporation, etc.) plan to issue in the near and long term. The agendas include regulatory plans and priorities and provide a framework of activity expected throughout the year. Departments and agencies may delay the release of regulations at any time, so it is important to note that projected timelines are estimates and may not be met by the date(s) indicated in the agendas.
A variety of regulations are scheduled to be issued in the months ahead potentially impacting health care, retirement, compensation, and employment. For additional information, please refer to the specific regulatory agendas.
The link to the Current Unified Agenda of Regulatory and Deregulatory Actions (i.e., updated Regulatory Agendas and Plans, searchable by department and agency) is available here.
The complete Semiannual Agenda website is available here.
A DOL news release is available here.