TAUC Legislative & Regulatory Update, May 2020

May 6 2020

May 2020 Legislative & Regulatory Update

Washington remains focused on the COVID-19 issue. After more than a month away, the Senate officially returned the first week of May and is back in session. The House is anticipated to return soon to consider next steps in addressing the fallout from the public health crisis. While Congressional leaders were still able to work out major emergency response packages during this period, rank-and-file members want to be more involved in the development of future response and recovery packages, as well as providing the necessary oversight of the funds that have been made available.

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 Packages

Congress and the Administration have enacted four legislative packages to address the immediate impact of the COVID-19 pandemic:

• Coronavirus Preparedness and Response Supplemental Appropriations Act (H.R. 6074) gave billions in emergency funding to the CDC, FDA and other public health agencies.
• "Families First Coronavirus Response Act" (FFCRA) provided support for the medical response and direct aid – including paid sick and family/medical leave — for those impacted by COVID-19.
• "Coronavirus Aid, Relief, and Economic Security Act" (CARES Act) provided $2.2 trillion in emergency economic relief to industries, businesses, and individuals impacted by the pandemic.
• "Paycheck Protection Program and Health Care Enhancement Act" (H.R. 266) provided another $484 billion in additional COVID-19 response to support small business loan programs, as well as emergency disaster grants, funding for hospitals and providers, and COVID testing.

Summaries of the various provisions impacting TAUC members, as well as links to government guidance on the various programs and provision including in these bills, can be found here.

Lawmakers are beginning to consider additional policy items and funding needed to provide additional COVID response and economic stimulus. To date, a range of issues have been raised as potential candidate for inclusion in future legislation, including:

• Multiemployer Pension Relief and Composite Plans – We are hopeful that the next package will include multiemployer pension relief and authorize the use of composite plans. During negotiations over the CARES Act, Senate Democrats proposed including additional funding allow the PBGC to establish as program to partition participants from failing multiemployer pension plans. The House Democratic package includes a loan program based on the Butch Lewis Act – which passed the House last year – as well as composite plans. While these provisions were not included in the final CARES legislation, we are hopeful that Congress will address the multiemployer crisis in subsequent emergency recovery legislation.

  We urge TAUC members to contact their members of Congress to include this important legislation in the next COVID response package. Additional information about this effort, as well as talking points and contact information for members of Congress, can be found here.
   

• COBRA Subsidy for Joint Labor Management Health and Welfare Plan Participates – TAUC has also been working with NCCMP and other union construction industry partners to ensure that future COVID-19 response legislation includes assistance for workers eligible for continued health coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). This subsidy would allow eligible plan participants to help cover the cost of maintaining their health care coverage under joint labor management health and welfare plans through COBRA.
   
• Infrastructure – President Trump, as well as many in Congress, remain interested in including increased surface transportation and broadband infrastructure in future recovery packages. Senate Majority Leader McConnell has already rejected including infrastructure in future COVID legislation.

  TAUC joined a letter with 71 other construction industry groups supporting the inclusion of long-term infrastructure investment in any future economic recovery and stimulus legislation.
   

• State and Local Government Revenue Restoration – The economic impact of stay-at-home orders has had a significant impact on state and local tax revenue, threatening job cuts, cuts to infrastructure investment and services. The CARES Act provide $150 million to state and local government to address unanticipated cost due to COVID response. These funds cannot be used to back fill reduction in state and local revenue losses. We anticipate that there will be an effort to provide at least $500 billion in additional support for state and local governments in the next package.
   
• Liability Limits – There will also be an effort to limit the liabilities of health care workers, business owners, and employees from lawsuits pertaining to the COVID-19 outbreak.
   
• Payroll Tax Relief – The Administration continues to promote the need for a future COVID relief package to payroll tax relief to employers. This concepted has previously been dismissed by both Republicans and Democrats, but as the focus of future packages shifts from response and stabilization to economic recovery and stimulus, it is possible this could be reconsidered.

OSHA COVID-19 Recordkeeping

OSHA issued revised guidance under its recordkeeping rule limiting the requirement that employers must determine whether workers were stricken with the coronavirus while on the job. Initially, OSHA had stated that coronavirus cases would have to be recorded.

Under the revised guidance, only employers in the healthcare industry, emergency response organizations such as police and fire departments, and correctional institutions will have to make the determination. Construction contractors, manufacturers, and other employers won't have to make the determination unless there's "objective evidence that a COVID-19 case may be work-related" and "the evidence was reasonably available to the employer." The guidance states that "objective evidence" includes "a number of cases developing among workers who work closely together without an alternative explanation."

Mercury and Air Toxics Standards

EPA released a final rule that scraps the legal basis for the Obama Administration's 2012 regulations on power plant emissions of mercury. The rule revoked the statutorily required finding that it is "appropriate and necessary" to curb releases of the neurotoxin, along with arsenic and other pollutants, from coal- and oil-fired power plants. EPA released a draft rule almost a year-and-a-half ago, arguing that the Obama administration's underlying rationale for what are formally known as the Mercury and Air Toxics Standards was flawed due to a heavy reliance on "co-benefits" stemming from reductions in pollutants different from those targeted by the standards to justify the expected compliance costs.

While the emissions standards will remain in place under the new rule, a coal industry lawsuit to strike the standard is possible. The rule will also set a precedent that will make it more difficult to set future air pollution curbs.

WOTUS Rule

The Trump Administration published a revised rule defining which water bodies are subject to federal jurisdiction. The Navigable Waters Protection Rule is a replacement for the Obama Administration's 2015 Waters of the United States (WOTUS) rule, which the construction industry had opposed as overly broad and said could result in restriction on important infrastructure and energy projects.

Under the new rule, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) provide regulatory clarity by defining which bodies of water are subject to federal authority. The new navigable waters rule lists four categories of waters that would be subject to federal jurisdiction: territorial seas and waters used in interstate or foreign commerce; certain tributaries; lakes and ponds; and wetlands that abut any of the other three types of waters. The rule also specifies 12 sorts of waters that would not be subject to federal regulation. Among them are ephemeral streams and similar bodies of water, groundwater, ditches, previously converted cropland, artificial lakes and ponds, constructed stormwater control ponds or other features and "water-filled depressions" that are considered "incidental" to construction or mining activity. Wetlands must touch another navigable body of water to be considered under federal jurisdiction under the rule.

While the rule is expected to set off a round of litigation, it is nevertheless scheduled to take effect June 22.