Category: News Line

On April 17, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs issued guidance to increase accountability and efficiency in its enforcement and to maximize the effectiveness of compliance assistance resources to assist contractors in meeting their responsibilities.

According to a DOL news release, the agency released the following directives:

• Efficiency in Compliance Evaluations: Directive 2020-02 outlines the steps OFCCP will take to expeditiously resolve compliance evaluations and quickly remedy violations to benefit the workers OFCCP protects and the regulated community. Efficient compliance evaluations help ensure the collection of relevant evidence in a timely manner.

• Pre-referral Mediation Program: Directive 2020-03 establishes a mediation program to resolve matters before spending significant time and resources in the enforcement process. OFCCP will offer this program to federal contractors and subcontractors to resolve findings of discrimination after the Show Cause Notice has been issued but prior to referrals to the Office of the Solicitor for enforcement. This mediation is not a substitute for the conciliation period between a Notice of Violation and Show Cause Notice.
• Ombuds Service Supplement and Protocol: Directive 2020-04 supplements Directive 2018-09 with additional details outlined in an Ombuds Service Protocol, which explains the principles of the Ombuds Service. While some stakeholders appear reluctant to contact OFCCP directly, the agency is committed to engaging in transparent communications, and created the Ombuds Service as an independent mechanism to allow stakeholders to share their concerns with OFCCP or provide general feedback and recommendations to improve agency administration.

More information on these directives can be found on the DOL website and in an analysis published by ABC general counsel Littler Mendelson P.C.

Additionally, in response to the COVID-19 pandemic, OFCCP issued a temporary exemption from certain federal contracting requirements through June 17, 2020.

ABC will continue to provide updates on OFCCP’s COVID-19 response in Newsline.

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On April 21, the U.S. Senate passed a bipartisan agreement that will provide $321 billion in additional funding for the Paycheck Protection Program. House members have been advised to return to Washington, D.C., for an April 23 vote on the interim coronavirus relief package, and the president has stated he will sign the bill into law once passed.

The $484 billion deal also includes $60 billion for the Economic Injury Disaster Loan program, $75 billion for the nation’s hospitals, $25 billion for COVID-19 testing and $11 billion in PPP administrative costs. Of that testing money, $11 billion will go to states.

Read the bill, a section-by-section explanation of the small business provisions and the hospital and testing provisions.

The concern now is how long these new funds will last. With the original $349 billion expended in just 14 days, lawmakers and economic experts believe that these new funds could expire even faster—as early as next week—due to implementation of a swifter approval process since the rollout, more approved lenders and thousands of applications at the ready. While not all small businesses are in need of assistance at this time, the country has approximately 30 million small businesses. The U.S. Small Business Administration has approved only 1.6 million PPP loans, and it is unclear how many businesses have applied.

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In a victory for worker freedom and the merit shop philosophy, on April 21, the West Virginia Supreme Court upheld the constitutionality of the Workplace Freedom Act, the state’s right-to-work law, in a 4-1 decision.

“Once again, the courts have sided with West Virginia workers by protecting their ability to make their own choices about union membership without fear of losing their paycheck,” said Bryan Hoylman, president and CEO of ABC West Virginia. “This is another victory for worker freedom and stands against the efforts by organized labor to fill their coffers without actual accountability.”

ABC West Virginia was deeply involved in the fight, with lawyers from ABC West Virginia member Jackson Kelly PLLC, alongside ABC West Virginia’s general counsel, Jack Merinar of Steptoe & Johnson PLLC, filing an amicus brief in support of the law on behalf of chapter members.

This decision is another reinforcement of right-to-work laws that are currently in force in 27 states and have been upheld repeatedly in courts around the country. Most recently, Kentucky enacted its own right-to-work policy in 2017.

The yearslong court battle began in 2016, when the AFL-CIO brought suit against the state in the Kanawha County Circuit Court and sought an injunction to stop the law before it became effective. The plaintiffs achieved a short-lived victory under a decision by Judge Jennifer Bailey in early 2017 to grant this injunction, which was later reversed by the West Virginia Supreme Court. From there, Judge Bailey again heard arguments around the law and overturned key aspects early last year. This led the case back to the Supreme Court, which heard oral arguments on the law in January 2020. Attorney General Patrick Morrisey defended the law on behalf of the state.

In their final decision, Justice Evan Jenkins wrote the opinion for the majority, with Justices Gregory Howard and John Hutchinson concurring. Justice Margaret Workman was the sole dissenting vote, concurring in part and dissenting in part.

Justice Workman referenced the recent U.S. Supreme Court case, Janus v. AFSCME (2018), writing that due to the U.S. constitutional implications of that case, it would be unlikely that opposition to parts of the West Virginia right-to-work law around a ban on agency fees—which are dues collected by a union from nonunion members—would be successful. However, she felt the West Virginia constitution should have “higher standards of protection” than the U.S. Constitution.

ABC will continue to update members about right-to-work states in Newsline.

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ABC’s construction technology and innovation initiative officially kicks off with three technology webinars. The first, Technology Can Help ABC Contractors as Coronavirus Disrupts the Industry, featured Jeff Sample, director of strategic accounts at eSUB Construction Software, and Karl Sorenson, managing partner of Blue Collar Labs, educating members on the best tools to communicate with their contractors off site and the intuitive technologies they can use to improve their bottom line when they go back on the jobsite. The session also explored collaborative tools to enhance team communication, such as Slack, Microsoft Teams and other videoconferencing solutions and document management tools.

The second webinar, Protecting your Company and Remote Workforce from Cyberthreats, will feature the president of Security Fanatics and top construction tech expert in cybersecurity, Nick Espinosa, who will discuss threats contractors may face while working remotely, such as getting hacked, and the right protections to have in place to prevent these types of events from occurring.

On April 28, Matt Abeles, ABC’s new vice president of construction technology and innovation, will be hosting a webinar on jobsite security throughout the construction process, as well as software solutions and best practices. Then, on May 12, Abeles will join leaders from United Rentals and Milwaukee Tool to discuss the best ways to educate our workforce and new tools they can use to keep them safer on the job site. Other topics being explored include analytics and observations you need for documentation during the COVID-19 pandemic and site monitoring technologies.

Other initiatives in the works are focused on technology education, adoption and collaboration with the tech community at large.

Check out all of ABC’s upcoming webinars and visit abc.org/academy to access archived webinars.

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Due to ongoing disruptions caused by the coronavirus pandemic, ABC has cancelled Legislative Week as an in-person event and will offer elements of the program virtually, as outlined below.

National Executive Committee Meeting: The virtual executive meeting will be held Monday, June 15, from 2-5 p.m. EDT.

National Committee Meetings: Committee meetings may be scheduled virtually at the discretion of the committee chair, in coordination with the staff liaison.

National Board of Directors Meeting: The virtual board meeting will be held Tuesday, June 16, from 3-5 p.m. EDT.

Diversity and Inclusion Summit: The summit has been postponed until ABC Legislative Week 2021. In lieu of the 2020 in-person event, ABC will be offering a series of webinars on diversity best practices presented by National Diversity Excellence Award winners and hosted by diversity program sponsor, United Rentals. Hear how these winners are changing the industry and meeting the demands of the 21^st century workforce. Winners will share best practices involving workforce and supplier diversity, community involvement and best-in-class recruitment policies. 

• Austin Commercial – presented by Simeon Terry, Vice President, Diversity Affairs, June 3 at 3 p.m. EDT. Click here to register.
• Allied Mechanical – presented by Steve Huizinga, President, June 10 at 3 p.m. EDT. Click here to register.
• United Rentals – presented by Kacie Brewer, Manager of Diversity and Inclusion, June 24 at 3 p.m. EDT. Click here to register.

Young Professionals Symposium: Cancelled for 2020, will resume in person at ABC Legislative Week 2021. 

Free Enterprise Alliance Reception: Cancelled for 2020, will resume in person at ABC Legislative Week 2021.

Legislative Day and Call to Action: ABC Government Affairs staff will host a virtual Legislative Day Briefing on Wednesday, June 17, from 11 a.m.-12:30 p.m. EDT. Along with updates on legislative hot topics, attendees will get an insider’s look at the 2020 elections—potentially the most interesting elections of our time. Registration for the briefing is complimentary due to the generous support of our sponsors—sign up today.

In addition, ABC Government Affairs will host a series of election updates leading up to the November elections. More details will follow.

Legal Conference: The ABC Legal Conference will be held virtually on Thursday, June 18, from 12:45-5:30 p.m. EDT. View the program schedule and register for $200.

For any questions, please reach out to meetings@abc.org.

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JR Gaylor, president and CEO of ABC of Indiana/Kentucky, is running for Indiana State Senate District 20 and will face two challengers in the Republican primary, which is set to be held on June 2.

Gaylor is a lifelong Hoosier and has served as president and CEO of ABC of Indiana/Kentucky since 1987. Under Gaylor’s leadership, ABC of Indiana/Kentucky has made huge gains for the merit shop. In 2019, the Indiana legislature passed a bill that eliminated project labor agreements  on projects funded by the Indianapolis Capital Improvements Board, which governed projects like Lucas Oil Stadium and Bankers Life Fieldhouse, and also banned PLAs on the proposed Eleven Park soccer stadium and the associated $550 million mixed-use development project.

In addition to his work at ABC, Gaylor serves as a board member of the Hamilton County Innovation Network and was a founding member of the Metro Indianapolis Coalition for Construction Safety.

Republican Victoria Spartz currently holds the District 20 state senate seat and is not seeking reelection. Spartz is running for the 5^th congressional district, in hopes of winning a seat in the U.S. House of Representatives.

Gaylor will face-off against Scott Baldwin and Christopher Penley in the primary, and it is set to be a tight race. Whoever wins the Republican primary will face Ronald Saunders III, the Democratic candidate.

The primary is scheduled for Tuesday, June 2, and we encourage you to visit standwithjr.com to learn more about Gaylor’s candidacy.

The ABC National team is monitoring the race closely and will continue to share important updates We encourage you to visit standwithjr.com to learn more about Gaylor’s candidacy.

Paid for by Associated Builders and Contractors. Not authorized by any candidate or candidate’s committee.

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On April 16, Tennessee Gov. Bill Lee announced the formation of the Economic Recovery Group, a joint effort between public officials and private industry that will look at rebooting the state’s economy amidst the coronavirus pandemic. ABC Greater Tennessee Chapter President Clay Crownover was appointed to the group and will serve alongside 14 other industry representatives, state legislators and agency officials to draft recommendations, according to a press release from the governor’s office.

As of this writing, Tennessee’s stay-at-home order has been extended through the end of April. Gov. Lee, a longtime member of ABC, has said most businesses in the state will reopen on May 1 under the new guidelines.

Under an executive order issued by the governor on March 30, “construction-related services, including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, school construction, construction related to essential activity or essential services, and housing construction” are permitted as part of the state’s designation of Essential Infrastructure Operations.

The appointment came in the same week that ABC National President and CEO Mike Bellaman was appointed to one of the Great American Economic Revival Industry Groups by President Donald Trump.

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On April 17, ABC, as a member of the Construction Industry Safety Coalition Steering Committee, wrote to the U.S. Department of Labor’s Occupational Safety and Health Administration regarding additional guidance from OSHA as it relates to construction.

“As the CISC, OSHA and the public health community continue to collectively address the outbreak, our contractor members are interested in receiving additional guidance from OSHA and, in particular, as it relates to construction,” according to the letter. “With the risk of OSHA enforcement under the General Duty Clause, we are seeking OSHA guidance and information in two areas, (1) reportability of COVID-19 cases, and (2) the recommended approach to social distancing and face coverings in construction.

“Recognizing the need for construction specific guidance and the essential nature of construction operations, the CISC developed a Construction Industry COVID-19 Exposure Prevention, Preparedness and Response Plan (“Response Plan”) that could be adapted by contractors to protect their employees. It provides a program structure, key protective measures to consider, cleaning and disinfecting procedures and other useful information, including a COVID-19 Toolbox Talk. The CISC intends to issue an updated plan to account for some of the recent public health guidance to controlling the virus,” the letter said.

In the letter, CISC urges OSHA to take the following actions:

• To issue a second enforcement memorandum clarifying that its recordkeeping enforcement position applies to both recording and reporting obligations under 29 C.F.R. Part 1904. By its terms, the guidance only applies to “the requirements of 29 CFR Part 1904 with respect to the recording of occupational illnesses.” OSHA does not appear to address the requirement in 29 C.F.R. Part 1904 that employers report work-related confirmed COVID-19 positive cases that result in a fatality or the in-patient hospitalization of an employee. Similarly, in the Interim Enforcement Program, OSHA discusses reporting obligations and OSHA’s response to same, but does not clarify whether the guidance given for recording COVID-19 cases is also applicable to reporting COVID-19 cases.
• To issue guidance to contractors making it clear that social distancing should be practiced where possible, but that a failure to do so will not, on its own, result in a General Duty Clause violation. One of the most basic recommendations by OSHA and the Centers for Disease Control and Prevention relates to social distancing. While working, employees are strongly encouraged to maintain at least six feet between each other. This will help slow the spread of the virus. The CISC’s Response Plan includes a social distancing recommendation. Notwithstanding this, there are times where it could be difficult to work six feet apart on construction jobsites. The nature of some construction activities makes social distancing challenging. Without any guidance from OSHA regarding how to address situations where keeping six feet away presents a challenge, contractors are faced with potential citation even though they are taking multiple steps to protect employees from COVID-19.
• To issue guidance clearly stating that face coverings are not PPE. Unlike N95 filtering facepiece respirators, the face coverings do not serve as barriers to the transmission of the virus to the wearer; however, they are effective at preventing community spread and should be promoted as meeting CDC recommended guidelines. This clarification is important. It will ensure that all employers and employees understand the purpose of the face coverings and their limitations, as opposed to respiratory protection program requirements. It will also help employers establish practices for the use and maintenance of the face coverings, whether voluntary or mandatory.

Any developments on the CISC letter will be reported on in Newsline.

Additional resources:

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On April 17, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency  released version 3.0 of its guidance on the essential critical infrastructure workforce.

CISA’s list of essential services is intended to help state, local, tribal and territorial officials as they work to develop policies to protect their communities, while ensuring continuity of functions critical to public health and safety as well as economic and national security.

The guidance says that decisions should appropriately balance public safety, the health and safety of the workforce and the continued delivery of essential critical infrastructure services and functions.

“Overall, the updated guidance document appears to be good news for parts of the construction industry that are able to continue work safely and in compliance with guidelines from the Centers for Disease Control and Protection and Occupational Safety and Health Administration. It lends additional support for government policies that affirm the construction industry is essential to America’s economy and fight against COVID-19,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “The guidance is especially welcome news for companies operating in states that follow CISA guidance when crafting their policies identifying essential businesses and workers that may operate during COVID-19 stay-at-home policies.”

The CISA guidance is not binding on states and localities. However, roughly 10 states directly follow CISA’s guidance, while dozens of other states and localities consider it along with many other factors informing their stay-at-home and essential industry policies.

ABC continues to update its resource tracking state and local COVID-19 policies impacting the construction industry. If a new or amended state or local policy is issued in your chapter territory, please alert via email Brandon Ray, Nick Steingart and/or Ben Brubeck on ABC’s State Affairs team.

In the Public Works and Infrastructure Support Services portion of the CISA guidance (p. 13), two new bullets were added and listed first, giving construction services related to critical infrastructure a brighter green light:

• Workers who support the construction, maintenance, or rehabilitation of critical infrastructure.

• Workers supporting construction materials production, testing laboratories, material delivery services, and construction inspection.

In the Commercial Services bucket (p. 18), a bullet was added which is of interest to ABC member contractors performing maintenance and construction of commercial buildings:

• Workers supporting the operations of commercial buildings that are critical to safety, security, and the continuance of essential activities, such as on-site property managers, building engineers, security staff, fire safety directors, janitorial personnel, and service technicians (e.g., mechanical, HVAC, plumbers, electricians, and elevator).

In the Residential/Shelter Facilities and Services bucket (p. 19), guidance was edited to clarify essential housing and commercial construction-related activities:

In the Energy bucket (p. 9), construction was broadly highlighted as an essential service, as well as specifically mentioned in the electricity (p. 9), petroleum (p. 10) and natural gas (p. 11) sections of the document:

Also of note, in the Considerations for Government and Business section (p. 3) of the document, there is significant new language and discussion about following CDC and OSHA guidelines while performing essential services.

Visit abc.org/coronavirus for quick access to CDC, OSHA and other resources for employers and ABC’s Emergency Preparedness and Response Resources for information on hosting a safety stand-down, conducting toolbox talks and protecting total human health in the COVID-19 era.

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On April 13, the U. S. Department of Labor’s Occupational Safety and Health Administration issued an interim enforcement response plan with instructions and guidance to OSHA Area Offices and compliance safety and health officers for handling coronavirus-related complaints, referrals and severe illness reports. The vast majority of OSHA’s interim enforcement response plan focuses on how to conduct inspections in the health care industry as opposed to general industry or construction.

According to an analysis written by ABC general counsel Littler Mendelson P.C., “the plan expressly modifies portions of the Field Operations Manual that detail how OSHA will process and handle investigations. The plan makes clear that OSHA will conduct significantly fewer on-site investigations, handling most through the informal process of calling employers followed by faxing or emailing an informal complaint. In line with existing procedures for nonformal complaints, if an employer provides a sufficient response, OSHA will close the complaint and not proceed to an on-site inspection…Even if an on-site investigation does occur, the plan directs that Area Offices ‘maximize the use of electronic means of communication (remote video surveillance, phone interviews, email correspondence, facsimile and email transmittals of documents, video conferences, etc.).’  Additionally, OSHA will prioritize enforcement related to healthcare and emergency response sectors, with the plan providing significant detail on how compliance safety and health officers are to conduct those investigations.”

The Littler analysis further states, “Formal complaints alleging unprotected exposures to COVID-19 for workers with a high/very high risk of transmission—i.e., healthcare organizations and first responders—will get top CSHO priority for investigation along with the possibility of an on-site inspection.  All other complaints, whether formal or non-formal, ‘will not normally result in an on-site inspection’ and will be processed in the ordinary course, but with new procedures focused on minimizing in-person contacts. This approach does not mean, however, that OSHA will not take all complaints seriously and continue to conduct on-site inspections.”

Additional highlights of the agency’s guidance include the following:

• OSHA should investigate complaints, referrals and employer-reported fatalities and hospitalizations to identify potentially hazardous occupational exposures and to ensure that employers take prompt actions to mitigate hazards and protect employees.
• In most cases, Area Offices should process complaints from nonhealthcare and nonemergency response establishments as “nonformal phone/fax,” following the nonformal complaint and referral procedures in the Field Operations Manual, CPL 02-00-163, Sept. 13, 2019, at www.osha.gov/enforcement/directives/cpl-02-00-163;
• Prior to any inspection related to COVID-19, each area director should evaluate the risk level of exposure at the workplace, and prioritize his or her resources in coordination with his or her regional offices to determine if an on-site inspection is necessary;

• Lower-exposure jobs are those that do not require contact with people known to be, or suspected of being, infected with COVID-19, nor frequent close contact with, i.e., within six feet of, the general public. Workers in this category have minimal occupational contact with the public and other coworkers.
• Employer-reported hospitalizations will be handled using the rapid response investigation in most cases; and
• The most current CDC guidance should be consulted in assessing potential workplace hazards and to evaluate the adequacy of an employer’s protective measures for workers. Where the protective measures implemented by an employer are not as protective as those recommended by the CDC, the CSHO should consider whether employees are exposed to a recognized hazard and whether there are feasible means to abate that hazard.

For additional OSHA resources, visit the agency’s coronavirus webpage.

This article is intended for informational purposes only and does not constitute legal advice or opinion.

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