July 7, 2020.
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On June 30, the Trump administration released its Spring 2020 Unified Agenda of Regulatory and Deregulatory Actions. The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to publish through the end of the year and into 2021. ABC has prepared a summary of the actions of interest to ABC members by agency.
U.S. Department of Labor
OSHA
In July 2020, the Occupational Safety and Health Administration plans to issue a proposed rule to amend the Welding and Cutting Standard in construction to eliminate any perceived ambiguity about the definition of “confined space” that applies to welding activities. OSHA is also expected to issue a proposed rule with corrections and amendments to the August 2010 final standard for cranes and derricks, which includes a large number of provisions designed to improve crane safety and reduce worker injury and fatality. Additionally, OSHA plans to issue a final rule to revise the agency’s standards for occupational exposure to beryllium and beryllium compounds in the construction and shipyards industries.
In August 2020, OSHA is expected to release a proposed rule clarifying the requirements for the fit of personal protective equipment in construction.
In November 2020, OSHA plans to issue a proposed rule to codify its memorandum position regarding post-incident drug testing and safety incentive programs. In October 2018, OSHA issued a memorandum clarifying its position on workplace safety incentive programs and post-incident drug testing included in the Obama administration’s 2016 Improve Tracking of Workplace Injuries and Illnesses Final Rule, also known as the Electronic Injury Reporting and Anti-retaliation Final Rule.
In March 2021, OSHA is expected to issue a proposed rule on occupational exposure to crystalline silica to determine if revisions to Table 1 in the standard for construction may be appropriate. ABC submitted comments on OSHA’s request for information on Table 1 of the silica standard as part of the Construction Industry Safety Coalition.
Wage and Hour Division
The Wage and Hour Division is expected to issue a request for information on the Family and Medical Leave Act of 1993 to solicit comments on ways to improve its regulations to better protect and suit the needs of workers and reduce administrative and compliance burdens on employers. The department plans to issue the RFI in July 2020.
WHD is also proposing a regulation for determining independent contractor status under the Fair Labor Standards Act, which was expected to be issued in June 2020.
For more information on upcoming DOL rulemakings, see the department’s Spring 2020 agenda.
National Labor Relations Board
The National Labor Relations Board also plans to revise its representation election regulations. The proposed rulemaking is expected to be split into two phases, titled Revision of Representation Case Rules (2) and Revision of Representation Case Rules (3), and focus on amendments relating to the procedures for the conduct of representation elections under the NLRB’s representation case procedures.
Additionally, the NLRB planned to issue a proposed rule that establishes standards under the National Labor Relations Act for access to an employer’s private property.
Both proposals and the proposed rule were expected to be issued in June 2020.
U.S. Department of Transportation
In December 2020, the Federal Aviation Administration plans to issue a final rule on Operations of Small Unmanned Aircraft Over People, which would amend the FAA’s 2016 final rule and allow the operation of small unmanned aircraft systems, or drones, at night and over people under certain conditions without obtaining a waiver. On April 15, 2019, ABC submitted comments on the FAA’s notice of proposed rulemaking, welcoming the proposal to ease certain restrictions on the use of small UAS without compromising the FAA’s valid safety objections.
U.S. Department of Housing and Urban Development
In August 2020, the U.S. Department of Housing and Urban Development is expected to issue a final rule revising regulations for Section 3 of the Housing and Urban Development Act of 1968, as amended by the Housing and Community Development Act of 1992, which ensures employment, training and contracting opportunities generated by certain HUD financial assistance to be directed to low-income people. The final rule is intended to reduce regulatory burden, increase compliance with Section 3 requirements and increase Section 3 opportunities for low-income people.
HUD is also expected to issue a proposed rule focused on updating and streamlining its requirements to comply with the National Environmental Policy Act, the National Historic Preservation Act and various other environmental resource laws, regulations and executive orders.
Council on Environmental Quality
In September 2020, the Council on Environmental Quality plans to issue a final rule updating and clarifying the federal environmental review and authorization process under NEPA. After President Trump signed Executive Order 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, the CEQ issued a proposed rule to modernize and clarify the regulations to facilitate more efficient, effective and timely NEPA reviews by federal agencies. On March 10, 2020, ABC joined several other organizations in submitting comments to the CEQ in support of the proposed revisions.
Equal Employment Opportunity Commission
The Equal Employment Opportunity Commission intends to issue a set of proposed rules in July 2020 to amend its regulation of employer-sponsored wellness programs. In August 2017, the U.S. District Court for the District of Columbia invalidated the EEOC’s final regulations on the operation of voluntary wellness programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, and ordered the EEOC to reconsider the rulemakings. In accordance with the court’s ruling, the EEOC rescinded portions of its ADA and GINA wellness rules on Dec. 20, 2018.
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On July 1, the U.S. House of Representatives passed H.R. 2, the Moving Forward Act, on a mostly party line vote of 233 to 188, with three Republicans voting for the bill and two Democrats voting against it. The House Democrats’ infrastructure plan would spend more than $1.5 trillion on surface transportation, airport, school, housing, healthcare, energy, water and broadband infrastructure, however, it also includes numerous anti-merit shop provisions opposed by ABC.
In a statement issued after the vote, ABC said, “While ABC agrees with the need for a substantial transportation infrastructure package, this bill includes harmful policies that will be detrimental to our nation’s ability to effectively and efficiently rebuild and modernize its infrastructure.
“By requiring anti-competitive provisions, such as government-mandated project labor agreements and inflationary Davis-Bacon prevailing wage requirements, this bill will dissuade contractors from bidding on projects, drive up overall costs and exclude the overwhelming majority of America’s construction industry professionals who choose not to join a union. These measures would also have a devastating impact on small construction businesses that are seeking to recover from the ongoing health and economic crisis caused by COVID-19.
“The path forward on repairing our nation’s infrastructure should be rooted in fair and open competition and equal opportunity, not policies that favor big labor and costly, ineffective federal mandates.”
Ahead of the vote, ABC members took action, urging their representatives to vote against H.R. 2, referencing a key vote letter that ABC sent to the House in opposition to the final passage of the bill that detailed many of its harmful provisions.
Additionally, ABC sent a key vote letter to members of Congress in support of an amendment introduced by Rep. Virginia Foxx (R-N.C.) that would eliminate the bill’s expansion of Davis-Bacon prevailing wage requirements. The amendment failed to be adopted before the final passage of H.R. 2.
While ABC expressed support for increased funding for infrastructure programs, ABC opposed the bill because of the mandates that would leave the majority of America’s construction workers who choose not to join a union out of the opportunity to rebuild their communities.
The path forward for legislative action on infrastructure remains murky, as the White House issued a Statement of Administration Policy opposing the bill, stating that if H.R. 2 were presented to the president, it would be vetoed. Additionally, the U.S. Senate has its own bipartisan surface transportation and water infrastructure bills, but they do not currently have a clear path forward for full consideration.
ABC will continue to update members on the developments of transportation and infrastructure legislation in Newsline.
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On Monday, June 29, President Trump signed an Executive Order requiring federal agencies to revise their hiring criteria to focus on the skill set of an applicant, rather than academic credentials. The order requires federal agencies to revise and update outdated federal job qualification standards and candidate assessments, improving the quality and competency of the civil service. Unnecessary college degree requirements exclude otherwise qualified Americans from federal employment, impose the expense of college on prospective workers and disproportionately harm low-income Americans. The order also implements best practices already adopted by private sector leaders to promote equity and inclusion. As a result of this reform, talented individuals with apprenticeships, technical training and appropriate skills will have more opportunities to pursue careers in the federal civil service, according to the White House.
Read this factsheet from the White House for additional information.
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On June 30, the Senate passed legislation by unanimous consent that would extend the application period for the small business Paycheck Protection Program through Aug. 8. The application period ended on June 30, and the bill still needs to be approved by the House and signed into law by President Trump. More than $130 billion in PPP funding remains available, which is great news as some states and local communities have seen increased rates of COVID-19 infections and are facing additional economic shutdowns that threaten to reverse recent economic progress.
ABC will continue to update members on this legislation in Newsline.
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Last week, Gov. Kim Reynolds (R-Iowa) signed legislation (SF 2338) that protects business owners and employees from COVID-19-related liability lawsuits. ABC of Iowa supported the bill, which protects business owners from coronavirus liability lawsuits while excepting lawsuits against individuals who recklessly or intentionally put others at risk.
The bill, which mainly targets healthcare industries—such as nursing homes, healthcare facilities and manufacturing facilities that sell or make personal protective equipment—continues a trend of liability protections that have been passed around the country in response to the coronavirus pandemic. To date, at least 13 states and the District of Columbia have passed legislative remedies that limit liability lawsuits, although each bill differs in terms of the industries that it applies to and the exceptions permitted to initiative a lawsuit. Additionally, some governors have issued executive orders that outline liability protections for business owners. The Iowa legislation applies retroactively to Jan. 1, 2020.
For a complete roundup of liability protections that have been introduced and passed at the state level in response to the coronavirus, this free resource is available from the National Conference of State Legislatures. To access the list of liability legislation, scroll down to the graphic titled “COVID-19 State Legislation Database.” From there, scroll down in the left-hand column and select “Fiscal: Liability” to access the full list of legislation.
ABC will continue to update members on the latest updates on this legislation in Newsline.
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Registration for ABC’s Election Series, powered by the Free Enterprise Alliance, is now open! The series kicks off on Thursday, July 16, and will run through Election Day, with two webinars scheduled per month.
The series will welcome political experts from across the country who will offer exclusive insights to the nation’s ever-evolving political landscape. The ABC National government affairs team will be joined by representatives from the Republican National Committee, the National Republican Senatorial Committee and more.
The ABC Election Briefing Series is free of charge and reserved for ABC members only. Sponsorship opportunities are available. Please contact Melanie Pfeiffenberger, ABC National Director of Political Affairs, for more information at pfeiffenberger@abc.org or (202) 595-1813.
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On June 25, the U.S. Department of Labor’s Occupational Safety and Health Administration issued a compliance directive designed to ensure uniformity in inspection and enforcement procedures when addressing respirable crystalline silica exposures in general industry, maritime and construction.
According to a DOL news release, the new directive provides OSHA compliance safety and health officers with guidance on how to enforce the silica standard’s requirements, including:
Additionally, the directive discusses alternative exposure control methods when a construction employer does not fully and properly implement Table 1, variability in sampling, multiemployer situations and temporary workers.
On Oct. 15, 2019, ABC submitted comments as part of the Construction Industry Safety Coalition on OSHA’s Request for Information on Table 1 of the agency’s Respirable Crystalline Silica Standard for Construction. Silica remains a top priority for ABC.
More information on the crystalline silica standards for general industry, maritime and construction can be found on the OSHA website.
ABC will continue to keep members informed of any developments on the silica rulemaking in Newsline.
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On June 22, Chair of the House Committee on Transportation and Infrastructure Peter A. DeFazio (D-Ore.) was joined by six other Democratic House committee chairs in a press conference releasing the Democratic Infrastructure Bill, H.R. 2, the Moving Forward Act.
The release of H.R. 2 came just days after the House Transportation and Infrastructure Committee approved the INVEST in America Act, a five-year, nearly $500 billion transportation reauthorization, after a two-day markup. The INVEST in America Act serves as the surface transportation sections of H.R. 2, bringing the total proposed infrastructure investment to more than $1.5 trillion.
ABC, which sent a letter to the Transportation and Infrastructure Committee detailing concerns about the INVEST in America Act, was disappointed to see that the merit shop construction industry’s priorities were not included in the larger Moving Forward Act. The bill also included several harmful provisions that would expand discriminatory government-mandated project labor agreements, apply flawed and inflationary Davis-Bacon prevailing wage requirements and fail to recognize the widespread success of industry-recognized apprenticeship programs.
In response to the release of H.R. 2, ABC sent a letter opposing the anti-competitive mandates in the bill, urging Congress to consider several changes to the legislation, including reducing costly and ineffective regulations, increasing competition and addressing the construction industry’s skilled worker shortage, all of which can help bring critical construction projects to market in a more economical and efficient manner.
While ABC expressed support for increased funding for infrastructure programs, the letter called for the path forward on infrastructure to be rooted in fair and open competition and equal opportunity —not mandates that would leave Americans out of the opportunity to rebuild their communities.
ABC will continue to update members on the developments of transportation and infrastructure legislation in Newsline.
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On June 11, Ohio Senate Republicans successfully pushed back on a proposal that would have added prevailing wage requirements on certain local transportation projects. ABC of Ohio led the opposition to removing the prevailing wage exemption by applying pressure to state lawmakers through traditional and grassroots outreach.
The provision was tied to Senate Bill 310, an emergency COVID-19 funding bill intended to distribute CARES Act resources to local governments and removed a prevailing wage exemption on projects funded through Transportation Improvement Districts. Instead of voting on SB 310, the Senate added the COVID-19 language to a separate House bill without the prevailing wage provision.
While Ohio has prevailing wage requirements on most state-funded projects, there are limited exceptions to the law that allow certain projects, such as K-12 school construction, to be built without prevailing wages. The prevailing wage exemption also applies to TIDs, which allows local governments across the state to finance and build various projects including streets, highways, rail tracks, bridges and numerous other types of transportation projects all without prevailing wage requirements.
If you have any comments or questions about this legislation, contact Bryan Williams, ABC of Ohio’s director of government affairs.
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