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TAUC Legislative & Regulatory Update, April 2020

March 31 2020

TAUC Legislative & Regulatory Update, April 2020

Not surprisingly, the COVID-19 emergency has overtaken Washington and the Congressional agenda. After finalizing a $2.2 trillion emergency response package, Congress is out of session until at least April 20, Congressional offices are closed, and most federal agency staffers are working remotely. Despite these challenging circumstances, TAUC continues to work with our partners to ensure the voice of the union construction and maintenance industry is heard in the development of the policy responses to address the public health crisis and the resulting economic stabilization and recovery.

Here is an exclusive update from TAUC on policy and regulatory issues of vital interest to contractors and the union construction and maintenance industry.

COVID-19 Response

Congress and the Administration are scrambling to address the immediate impact of the COVID-19 pandemic. Initial actions are focused on supporting the medical response and providing direct support for those impacted by the public health crisis.

  • H.R. 6201 – the "Families First Coronavirus Response Act" (FFCRA). The initial response to the outbreak, FFCRA included provisions intended to bolster many elements of the medical response to the coronavirus, expand food assistance to low income families, expand unemployment benefits, and provide emergency funding for programs that assist the elderly. It also included a significant expansion of paid sick leave and family leave under the FMLA, as well as a new tax credits for employers of fewer than 500 individuals to cover the costs associated with providing such leave to their workers. Specifically, the bill establishes:
    • An emergency paid leave program requiring private sector employers with fewer than 500 workers to provide up to 12 weeks of job-protected leave under the Family and Medical Leave Act (FMLA) for employees who are unable to work or telework because they have to care for a child younger than 18 whose school or day care has closed because of the coronavirus;
    • A requirement that private sector employers with fewer than 500 workers and government entities would have to provide employees who are unable to work or telework with immediate 80 hours of paid sick time off for full-time employees to:
      • Comply with a federal, state, or local quarantine or isolation order.
      • Self-quarantine per a health-care provider's advice.
      • Obtain a medical diagnosis for coronavirus.
      • Care for an individual who is in quarantine or for a child whose school or day care has closed due to coronavirus.

The bill also provides refundable tax credits to employers to cover wages paid to employees while they are taking time off under the bill's sick leave and family leave programs. A full summary of the paid sick and family medical leave provisions of H.R. 6201 can be found here.

  • "Phase 3" Economic Stimulus – Congress also passed a wide-ranging $2.2 trillion economic response package to aid industries, businesses and individuals significantly impacted by the COVID-19 outbreak. This package – the "Coronavirus Aid, Relief, and Economic Security Act" (CARES Act) – provides federal grants and loans to ensure liquidity for financial markets, aid to businesses and specific industries, expanded unemployment insurance, and payments to individuals. Other provisions in the package include:
    • Payments of $1,200 to many middle-class individuals or $2,400 for married couples, plus $500 per child, phase out for people making more than $75,000 or couples making $150,000.
    • Increased unemployment insurance payments and recipients would be eligible to receive those funds for longer.
    • $500 in loans that could go to Treasury Department's Exchange Stabilization Fund to provide loans, loan guarantees, and other investments to eligible businesses, states, and municipalities to alleviate coronavirus-related economic disruptions.
    • $350 billion in loans for small businesses that could convert to grants if the companies retain their employees authorize.
    • $17 billion to alleviate six months of principal, interest, and fee payments for businesses with existing SBA 7(a), 504, or microloans.
    • $280 billion in tax breaks for struggling businesses, include an employee retention tax credit to encourage companies to keep workers on payroll during the crisis.
    • Allows businesses and self-employed workers to defer payment of the employer share of Social Security tax through December 31, 2020.

During negotiations over the final package, Democrats tried to include additional funding for ailing multiemployer pension plans. The House Democratic package included a loan program based on the Butch Lewis Act – which passed the House last year – as well as the GROW Act. There are also reports that Democrats wanted to include authorization of the use of composite plans. Unfortunately, these provisions were not included in the final package. There are hopes that Congress will address the multiemployer crisis in subsequent emergency recovery legislation. We will continue to monitor discussions over inclusions of pension provisions.

  • "Phase 4" and Beyond – While Washington has developed legislation to address the immediate impacts of the crisis and identify ways to prop up of the economy, keep people working and spending money (as best as possible), and provide support to those who have lost their jobs, there are discussions about addition steps to provide economic stabilization and recovery. The details on this package(s) will not be known until the magnitude of the public health crisis on the economy is better understood. We would expect that additional infrastructure will be a significant part of these future stimulus packages. We are also hopeful that multiemployer pension relief will be included. Speaker Pelosi has mentioned both infrastructure and addressing the multiemployer pension crisis as priorities for House Democrats in future response legislation.
  • Construction Employers of America (CEA) Letters – Responding to public policy developments being taken to response the outbreak, the CEA sent a couple of letters highlighting the union construction industries' perspective on these actions to this situation.

First, the CEA sent a letter to Congressional leaders outlining our concerns with aspects of H.R. 6201 and additional steps we believe the federal government must take to ensure the union construction is not negatively impacted by the response to the Coronavirus outbreak and urge that any actions taken support the union construction industry and allow our member firms to continue to provide work opportunities to their employees. Specifically, the letter urged Congress to take steps to address the amount of tax credit offset on the cost of expansion of paid sick leave, address the looming multiemployer pension crisis and authorize the use of composite plans, urge steps to protect joint labor-management health and welfare plans, and increase infrastructure investment. 

The CEA also sent a letter urging that construction be considered an essential activity. To stem the spread of COVID-19, many state and local governments have issued mandatory quarantine orders. The CEA urged congressional leaders to ensure that the federal government explicitly recognize construction activities as essential to ensure public health and safety during this pandemic.

  • COBRA Subsidy for Joint Labor Management Health and Welfare Plan Participants – TAUC also joined a group letter organized by the National Coordinating Committee on Multiemployer Plans regarding assistance for workers eligible for continued health coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). The letter urged Congress to include subsidies to eligible plan participates to help cover the cost of coverage of maintaining their health care coverage under joint labor management health and welfare plans through COBRA. The addition of this provision would prevent disruptions in the continuity of care for beneficiaries, as well as stabilize multiemployer plans. Unfortunately, these provisions were not included in the CARES Act. We continue to work with NCCMP to advocate for the inclusion of COBRA subsidies in future response packages.

Industry Recognized Apprenticeships Rule

Before Washington attention shifted entirely to dealing with the coronavirus, the U.S. Department of Labor issued its final rule on Industry-Recognized Apprenticeship Programs (IRAPs). The rule addressed concerns raised by TAUC in the organization's comments submitted on the proposed rule.

First, the rule clearly and definitively exempts construction from the scope of the IRAPs rule. DOL stated that it will not recognize any IRAPs that are intended to train apprentices in construction-related activities, concluding that the construction industry is already well-served by the current privately funded registered apprenticeship system administered jointly by union labor and management.

The final rule also address TAUC's concerns with the DOL's narrow definition of construction used in the proposed rule, which could have excluded "maintenance" activities and created confusion in the field. The final rule definite construction activities as "consisting of the erecting of buildings and other structures (including additions); heavy construction other than buildings; and alterations, reconstruction, installation, and maintenance and repairs."

Senate Energy Package

Earlier this month, the Senate failed to advance a bipartisan energy package that had been under consideration on the Senate floor. The American Energy Innovation Act was introduced by Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) and ranking member Joe Manchin (D-W.Va.). The energy package included more than 50 energy-related measures passed by the Energy Committee and contained provisions on Department of Energy clean energy technologies research and development, critical minerals, and efficiency. The package was designed to boost federal support for a range of energy sources to "strengthen the domestic economy, national security, and international competitiveness while facilitating cleaner energy that protects human health and the global environment."

Consideration of the bill fell apart over a bipartisan effort to vote on an amendment related to phasing down the use of hydrofluorocarbons (HFCs) and a Federal preemption of state HFCs programs. This amendment was one of more than 185 on the energy package and drew opposition from Senator John Barroso (R-WY), the Chairman of the Environment and Public Works Committee. A bipartisan group of senators objected to Barroso's effort to preempt states from enacting more stringent HFC cuts than federal reductions. Ultimately, there was not enough support to allow the bill to advance and it was pulled from consideration.

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