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The Ramifications of the Federal Hiring Freeze

January 27, 2017

The Presidential Memorandum creating a federal hiring freeze provides exemptions only for national security and public safety. Using this standard, some FDA activities should be automatically exempt (e.g., bioterrorism work is national security and front-line food and drug inspectors are clearly necessary for the immediate protection of public safety).

Apart from those examples, the federal hiring freeze could possibly affect all remaining FDA vacancies, none, or only some. There are a lot of possible outcomes and no clarity (yet) on which one it will be. While our membership needs to be prepared to explain how detrimental such a hiring freeze would be should it be applied to FDA, there is some chance that FDA will be okay if the exemption rules are favorably interpreted.

The key is how OMB and the Secretary of HHS choose to define “public health.” On Thursday (January 26), the Washington Post’s federal workforce reporter stated: “a White House official told me yesterday that public health jobs are included in public safety.” If true, it’s a positive sign.

However, there is no fixed definition of public health, so it doesn’t resolve FDA’s status. Further, the White House staffer who is quoted may have been thinking about clinicians at the Veterans Administration, not product reviewers and food safety regulators at FDA. The Alliance’s position is that all FDA activities should be classified as public safety due to the significant public health impact of FDA’s work. Americans need their food supply to be safe and their medical products to be safe and effective. Since more than 80% of FDA’s costs are personnel driven, FDA cannot fulfill its statutory responsibilities without a complete workforce.

Most of the current uncertainty is because the Memorandum is a broad document laying out general policy with not much detail about implementation within a vast government workforce. Thus, OMB and OPM are expected to issue a series of clarifying guidances. The first such guidance was issued this week, but doesn’t add any insight into FDA’s status.

Once policies are clarified, the Memorandum directs the head of the relevant department or agency (presumably HHS for FDA) to determine and grant exemptions for vacancies that are related to national security and public safety. The best outcome for FDA is for the Secretary of HHS to determine that all of the agency’s public health responsibilities are essential to public safety.

The Memorandum also grants OMB/OPM the authority to make additional exemptions “where those exemptions are otherwise necessary.” If FDA is not initially exempt, this might provide an avenue for HHS to free up FDA vacancies that are essential, but may be hard to categorize as national security or public safety.

We have been asked a number of times whether distinctions will be drawn between vacancies supported by appropriated funds and vacancies supported by user fees. The Executive Order resolves that question by applying the freeze to all federal agency vacancies, regardless of the source of funding. It is possible that OMB or HHS, within their discretionary powers, might decide the issue differently. Further, the PM states that it “does not limit the hiring of personnel where such a limit would conflict with applicable law.” We do not know whether user fees would meet that criteria.

Finally, this short-term freeze may not continue for more than a few months, depending on how quickly OMB produces an acceptable long-term plan. They are given 90 days to do so. However, the PM expires when the OMB plan is implemented, which may take more than 90 days.

If the freeze temporarily applies to FDA, it will be a serious blow to the agency’s efforts to fill vacancies. However, the stakes are much greater as to how FDA vacancies are treated under OMB’s long-term plan. If FDA is not favorably considered, it could have a permanent effect on FDA staffing and its ability to carry out its responsibilities.

The Alliance will be at the forefront in advocating for no restrictions, short-term or long-term, on hiring at FDA.

Note: The Analysis and Commentary Section is written by Steven Grossman, Deputy Executive Director of the Alliance for a Stronger FDA.

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