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NCA’s Washington Weekly Update 12-20-21

Situational Awareness
The House and Senate are not in session this week. The Senate returns to Washington on January 3, 2022. The House returns to Washington on January 10, 2022.

Sixth Circuit Lifts OSHA ETS Stay

Late on Friday, the Court of Appeals for the Sixth Circuit lifted the nation-wide stay on the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) requiring employees in firms with 100 or more employees to either vaccinate or submit to weekly testing for the coronavirus. Employers have until January 10, 2022 to comply with the rule, but enforcement will not occur until February 9. OSHA issued a statement after the ruling:

“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace. To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

With the Sixth Circuit’s ruling conflicting with the Fifth Circuit, it is very likely that the Supreme Court will have to act as the final arbiter of whether the rule can proceed while legal action is pending. There are more than 30 lawsuits pending over the validity of the ETS and the stay simply puts the rule on hold until the litigation is settled. It is unclear whether the Supreme Court will take up an appeal of the stay and make a ruling prior to the January 10 implementation. NCA recommends clubs take appropriate measures to comply with the ETS in the event it does go into effect. As noted above, OSHA will not issue citations for noncompliance prior to February 9.

NCA To File Amicus Brief in Florida
NCA will be filing an amicus brief in Florida Appellate Court this week this week seeking an extension to file an amicus brief in the Fiddlesticks Country Club v. Potter case. The amicus, or “friend of the court” brief, is intended to highlight the broad impact a ruling in a lower court will have on the private club community. The case involves members suing a club over the refundability of an assessment after the club’s bylaws were amended in 2013 to make all future assessments nonrefundable. The court ruled that the bylaws in effect at the time members joined, which stated that all assessments were refundable, was in effect a contract between the club and members. As such, the contract could not be changed without the agreement of both parties—though the club’s bylaws clearly state that they can be amended by a majority vote by the membership. If the ruling stands, it will cause significant disruption to private clubs in Florida and potentially expose them to hundreds of thousands of dollars in settlements.

To file the amicus, NCA has hired a former appellate judge in Florida and established a Legal Action Fund to offset NCA’s cost of filing the brief. If your club would like to contribute to the Legal Action Fund, you can find more information here.

DHS Announces Additional H-2B Visas
Earlier today, the Department of Homeland Security (DHS) announced they will be issuing a joint temporary final rule to make available an additional 20,000 H-2B nonagricultural worker visas for fiscal year 2022. The visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022. This is the first time DHS has made additional visas available in the first half of the fiscal year. The supplemental H-2B visa allocation consists of 13,500 visas for returning workers and the remaining 6,500 visas are reserved for nationals of Haiti and the Northern Triangle countries of Honduras, Guatemala and El Salvador.

Senator Manchin Dashes Hopes for BBB Deal
Over the weekend, Senator Joe Manchin (D-W.Va.) made it absolutely clear he will oppose President Biden’s Build Back Better (BBB) economic agenda despite months of negotiations. While the White House claimed to be surprised by the announcement, Manchin has repeatedly shared his concerns with the legislation and at one point gave Majority Leader Chuck Schumer (D-N.Y.) a written outline of what he would be willing to support. Schumer has said that a vote on the package will proceed in early 2022 to get all Senators on record as supporting or opposing the measure. Senator Kyrsten Sinema (D-Ariz.) has also expressed continued opposition to the package as it is currently drafted. The events have triggered the ire of House and Senate progressives who were holding up passage of the infrastructure package in a bid to ensure passage of BBB.

Labor Regulation Outlook Webcast January 11

On January 11, 2022, NCA will host a webcast at 2 p.m. ET to take a prospective look at what labor regulations and policies are in the pipeline for the year ahead. The webcast will be hosted by me and feature Marc Freedman, vice president of employment policy with the U.S. Chamber of Commerce, and Josh Ulman, managing partner and founder of Ulman Public Policy. Ulman and Freedman are among the top employment policy specialists in Washington, D.C., and I have had the pleasure of working closely with them for more than ten years. This should be an informative and interesting look ahead at the labor and employment policies likely to affect private clubs in the coming months and years.

Save the date for this event. Registration is forthcoming.

Coronavirus Concerns Elevated Again
Recent poll numbers are painting a bleak picture for Democrats in the 2022 mid-term elections. While the election is 11 months away and events between now and the election will certainly alter the landscape, right now Republicans With the emergence and rapid spread of the omicron variant, COVID-19 is once again causing great concern among policymakers and public health officials. While the variant appears to cause a milder disease, it is proving to be much more transmissible. President Biden is scheduled to address the nation on Tuesday warning of increased risk to those who remain unvaccinated. The winter season has once again increased the number of hospitalizations and deaths from the virus. The President will remind Americans that they can protect themselves from severe illness from the virus by getting vaccinated and getting their booster shot if they have already been vaccinated.

Ambassador to Ireland Nomination Cleared in Senate
As the Senate was winding down its last actions of 2021, a agreement was reached to process a slew of nominations, one of which was of interest to the NCA. Among the nominations was Claire Cronin to be Ambassador to Ireland. Mrs. Cronin is a state legislator in Massachusetts and the wife of the founder of Club Benchmarking, Ray Cronin. On behalf of the NCA, I would like to congratulate Ambassador Cronin and wish her and Ray well as they depart for Deerfield Residence in Phoenix Park, Dublin.