#2022-02, January 14, 2022

Supreme Court Stays Enforcement of OSHA Vaccine/Testing Emergency Temporary Standard

The US Supreme Court yesterday issued an order stopping enforcement of the Occupational Safety and Health Administration’s (OHSA) Emergency Temporary Standard (ETS) that mandates that employees working for companies with 100 or more employees must receive the COVID-19 vaccine or present a negative COVID test at least weekly.  As we have reported previously, several states and business groups had challenged the mandate in federal court last year.  The Supreme Court’s order means that the ETS cannot be enforced until after that case is decided.

The opinion, which was signed on behalf of the Court and not by any one Justice, states that the challengers are “likely to succeed on the merits of their claim that [OSHA] lacked authority to impose the mandate.”  Justices Gorsuch, Thomas, and Alito issued a concurring opinion, while Justices Breyer, Sotomayor, and Kagan issued a dissenting opinion.  By a 5-4 opinion, the court did allow a similar mandate for most health care workers to move forward.

The stay is expected to remain in effect until the appeal of the Sixth Circuit panel’s initial ruling in the case to lift a lower court’s stay is completed.  While it is unclear exactly how the case will proceed, the legal process could take several months and involve an additional appeal to the Supreme Court, meaning a decision on the ETS is unlikely before mid-year.

To read the Supreme Court decision, click here.

President Biden Nominates Sarah Bloom Raskin, Lisa Cook and Phillip Jefferson for Fed Board

According to published reports, President Biden will nominate three individuals to serve on the Federal Reserve Board of Governors: Sarah Bloom Raskin, Lisa Cook and Phillip Jefferson.  The three nominees, who must be confirmed by the Senate, will join Fed Chair Jerome Powell and Governors Lael Brainard, Michelle Bowman, and Christopher Waller on the Board.

MBA President and CEO Kathleen Murphy, who worked closely with Raskin when she served as the chief banking regulator in Maryland from 2007-2010, noted that, “These were years just before and in the depths of the Great Recession when Maryland saw its first bank failure in 40 years. Her steady leadership during a time of tremendous uncertainty maintained public confidence in the Maryland banking industry. Sarah’s collaborative approach brought all voices to the table as she influenced legislative and regulatory changes to strengthen consumer protection while also preserving banks’ ability to support their clients and the local economy.”  In addition to serving as Maryland Commissioner of Financial Regulation, Raskin previously served on the Fed Board from 2010-2017 and as Deputy Secretary of the Treasury during the Obama administration.  Raskin will be nominated to serve as the Vice Chair for Supervision, a position that has been vacant since Randal Quarles resigned from the Board last year.

Cook has been a professor of economics and international relations at Michigan State since 2005.  She was also a staff economist on the White House Council of Economic Advisers from 2011 to 2012 and was an adviser to the Biden-Harris transition team on the Fed and bank regulatory policy.  Jefferson is currently the dean of faculty at Davidson College in North Carolina and a former Fed researcher.  His research has focused on poverty and monetary policy.

MBA Comment Letter Expresses Concerns with CFPB Section 1071 Proposal

Last week, the Association raised several concerns regarding the Consumer Financial Protection Bureau’s (CFPB) proposed rule to implement Section 1071 of the Dodd-Frank Act.  Section 1071 requires banks and other lenders to collect credit application data for small businesses, including women-owned and minority-owned small businesses.

MBA’s letter states that the proposal may not accomplish either objective while also increasing the cost of small business lending by placing a significant operational burden on the banking industry.  In particular, the added compliance costs for the industry will likely reduce the availability of or increase the costs of credit to small business customers.  This will be especially acute at community banks, which provide a significant amount of financing for small businesses throughout Massachusetts.

The Association notes that the proposed threshold for banks to be exempt from the data collection requirements is far too low – only 25 loans – and that the definition of small business, which includes firms with up to $5 million in Gross Annual Revenue (GAR), should be adjusted to $1 million GAR to better reflect the small business lending market.  In addition, the letter opposes the CFPB’s inclusion of several data points that go beyond the statutory requirements and calls on the Bureau to ensure that to the extent possible, the new data collection requirements are consistent with existing mandates under the Community Reinvestment Act (CRA) and the Home Mortgage Disclosure Act (HMDA).

To read MBA’s comment letter, click here.