Week in Review

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The CDC updates its mask guidance for vaccinated individuals, President Biden requires federal employees to reveal their vaccination status, and more…

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IN THE NEWS

  • The U.S. Centers for Disease Control and Prevention (CDC) updated its mask guidance to protect against the Delta variant and recommend that fully vaccinated individuals wear a mask indoors in public in areas of “substantial or high transmission.” The CDC designated approximately 67 percent of U.S. counties as areas of substantial or high transmission. CDC director Rochelle Walensky reportedly said the decision to encourage vaccinated people to wear masks indoors “weighed heavily” on her and that she knew the decision was “not welcome news” but that the CDC did not make the decision lightly.
  • President Joseph R. Biden announced that all federal civilian employees must share their vaccination status. Employees who do not attest to being fully vaccinated will be required to comply with alternative precautions, including regular testing and mask requirements. President Biden’s order comes in response to rising concerns about the increasing cases of the coronavirus Delta variant. The move also follows similar actions taken by California and New York, among other state and local jurisdictions.
  • In a press briefing, the White House said it would not lift any existing international travel restrictions on travelers entering the United States at this time due to concerns about the Delta variant of the novel coronavirus. The White House also said it expected the CDC to “continue to provide guidance on masks that keeps more people safe” when asked about mask requirements for domestic air travel. Tori Emerson Barnes, executive vice president of the U.S. Travel Association, urged the White House to “revisit its decision in the very near term and begin reopening international travel to vaccinated individuals.”
  • The U.S. Department of Health and Human Services and the U.S. Department of Justice jointly issued guidance explaining that “long COVID”—described as long-lasting COVID-19 symptoms or later-occurring COVID-19 symptoms—may qualify as a disability under federal laws, including the Americans with Disabilities Act (ADA). The joint guidance explains that a substantial limitation of at least one major activity of an individual’s life from a “physical or mental impairment” constitutes a disability under federal law—a determination that must be made on a case-by-case basis. Individuals found to have a disability stemming from long-COVID are entitled to “full and equal opportunities” in life and are to be afforded protection from discrimination based on their disability. This announcement came on the 31st anniversary of the ADA.
  • A federal appeals court unanimously ruled that the CDC overstepped its authority under the Public Health Service Act of 1944 when it imposed a nationwide eviction moratorium in September 2020. The court held that federal law did not give the CDC power to govern landlord-tenant relationships “without clear textual evidence of Congress’s intent to do so,” which the court did not find. The Pacific Legal Foundation, which had challenged the eviction moratorium, said the ruling “reduces the likelihood that the CDC will renew” the moratorium.
  • The U.S. Environmental Protection Agency (EPA) announced its intent to strengthen rules governing the wastewater discharge from coal-fired power plants. The Biden Administration’s move would undo a Trump Administration revision of an Obama Administration rule that set the first federal limits for the amount of toxic metals in wastewater discharged by power plants. EPA’s announcement follows an executive order issued by President Biden directing EPA to review regulations from the Trump Administration that conflict with the Biden Administration’s goals to protect public health and the environment.
  • The Justice Department determined that U.S. Representative Mo Brooks (R-Ala.) was acting as a private individual—rather than in his official capacity—when he addressed Trump supporters at a “Stop the Steal” rally in Washington, D.C. in January 2021, and he therefore does not qualify for legal protection under the Westfall Act, which provides immunity for federal employees for job-related conduct. U.S. Representative Eric Swalwell (D-Calif.) brought a lawsuit against Brooks, President Donald J. Trump, Donald J. Trump, Jr., and Rudy Giuliani, alleging that they instigated the January 6, 2021 Capitol riot and conspired to interfere with the presidential election process. The Justice Department reasoned that although the scope of a member of Congress’s duties are not defined, “courts have routinely rejected claims that campaigning and electioneering activities” fall within their official employment capacity, so it declined to side with Brooks in the lawsuit.
  • The General Office of the Communist Party of China Central Committee and the Chinese General Office of the State Council issued new guidelines banning private tutoring companies from profiting or raising funds on stock markets and mandating that existing private tutoring companies be classified as non-profit organizations. The Chinese Ministry of Education stated that the guidelines were issued to alleviate pressure on students enrolled in compulsory education in China. Koolearn Technology, a Chinese tutoring company said that it expects to experience a “material adverse impact” because of the profit restrictions. Following the issuance of the guidelines, stock values of Chinese education companies—historically robust investments—dropped across markets.

WHAT WE’RE READING THIS WEEK

  • ​​In an article appearing on The Pew Charitable Trusts website, Ian Reynolds, Josh Wenderoff, and Vanessa Baaklini of the Pew staff argued that state lawmakers should expand access to opioid treatment programs to promote the safety and recovery of individuals with opioid use disorder. Reynolds, Wenderoff, and Baaklini explained that state-imposed limitations governing opioid treatment programs, such as restrictions on available locations and capacity, can keep individuals from securing needed treatment. To facilitate individuals’ recovery from opioid use disorder, Reynolds, Wenderoff, and Baaklini recommended that states relax restrictions on where treatment programs can be established and eliminate any requirement that pharmacists must oversee treatments, which federal law does not require. Reynolds, Wenderoff, and Baaklini also recommended that lawmakers relax restrictions on how medication for opioid use is distributed and require Medicare and Medicaid to reimburse the cost of treatment.
  • In a joint policy brief issued by the Center for Progressive Reform, Earthjustice, and the Union of Concerned Scientists, David Flores, senior policy analyst at the Center for Progressive Reform, and multiple coauthors argued that EPA should strengthen the Clean Air Act’s Risk Management Program to prevent “double disasters.” Double disasters occur when hazardous chemical releases from industrial plants are worsened by climate crisis events, such as wildfires and flooding. Flores and his coauthors recommended that EPA restore and strengthen Obama-era regulations through measures such as expanding the agency’s risk management program to cover more facilities, enhancing real-time monitoring of toxic air emissions data, improving emergency response planning and worker involvement, and implementing double-disaster-specific risk assessments and prevention measures.
  • In a recent National Bureau of Economic Research working paper, Andrew Barr, professor at Texas A&M University, and several coauthors studied the impact of the Post 9/11 GI Bill on the level of education completed by veterans and their long-run earnings. The Post-9/11 GI Bill helps eligible veterans pay for school or job training. Barr and his coauthors found that the policy did not significantly impact the amount of education veterans completed while it negatively impacted their earnings. The authors theorized that their findings may be the result of veterans choosing to attend school because it is offered to them, even if the school is of low quality and may not serve them as well as building skills in the labor force.

FLASHBACK FRIDAY

  • In an essay in The Regulatory Review, Britney Wilson, professor at New York Law School, discussed the viral video of a 2016 arrest of a Black woman and double amputee who was dropped by police and left on the ground after being arrested. Wilson explained that Title II of the Americans with Disabilities Act prohibits police departments and other law enforcement agencies from discriminating against people with disabilities. Given the prevalence of incidents such as the one Wilson described, she questioned whether law enforcement agencies are performing their duties to accommodate people with disabilities. She concluded that police departments should provide robust notice and comment processes in connection with their internal evaluation so as to provide a mechanism for affected groups and the public at large to protect the interests of people with disabilities.