TAUC Legislative & Regulatory Update, October 2021

October 7 2021

Congress faces a packed legislative agenda this month that includes passing the $1.2 trillion bipartisan Infrastructure Investment and Jobs Act (IIJA), crafting the Democratic reconciliation bill, and increasing the debt ceiling. Lawmakers averted a government shutdown at the end of the fiscal year, enacting a stopgap legislation to fund the government until December 3rd several hours before the previous funding legislation lapsed. Divisions between House progressive and moderate democrats forced Speaker Pelosi to delay the self-imposed September 27th deadline to vote on the Senate-passed IIJA. House progressives threatened to withhold necessary votes without assurances on the reconciliation legislation, which could not be provided. The White House and Democratic adjusted the timeline for both pieces of legislation until the end of October.

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

Congress Takes on Infrastructure and Biden's Build Back Better

Speaker Pelosi withheld a floor vote on the Senate-passed IIJA, missing the September 27th deadline she negotiated with House moderates last month to ensure support for a budget resolution including authorization the use of fast-track budget reconciliation process to advance President Biden's Build Back Better process.

The IIJA, which passed the Senate by a bipartisan votes of 69-30, would provide $1.2 trillion in investment in infrastructure investment over the next 5 years. TAUC has been actively engaged in efforts to support this legislation, joining with construction trades associations to advocate for passage of the package, which includes $550 billion in new infrastructure investments. The legislation requires prevailing wage coverage for projects and activities funded by the bill. It also includes the use of registered apprentices as a selection consideration for discretionary funding.

Since passing the Senate in July, the bipartisan infrastructure package has stalled in the House over efforts to negotiate an agreement on legislation to advance the President's Build Back Better (BBB) program that can pass both the House and Senate.

Last month, the House prepared a 10-year, $3.5 trillion reconciliation measure and advanced it through the Budget Committee. However, pushback from moderate Democrats in the Senate, including Joe Manchin (WV) and Krysten Sinema (AZ), have cast doubt on the ability of Democratic leadership to unite their caucus around the legislation.

Following these developments, House progressives threatened to withhold needed votes on IIJA. This, combined with Republicans' opposition to the infrastructure package, meant leadership lacked the votes to pass the IIJA in the House. Negotiations to advance both the infrastructure and reconciliation packages continue, with Democratic leadership now hoping to complete consideration of both packages by the end of October.

The White House is seeking to negotiate a topline spending level with moderates in the Senate, informing policy negotiations as Democrats craft a bill that garners the support necessary to pass both Houses. Currently the President has lowered his top-line number to $2.2 trillion over 10-years, while Senator Manchin continues to signal an unwillingness to agree to package that costs more than $1.5 trillion.

Once Democrats achieve consensus on the size and scope of the package, the House and Senate are likely to advance their respective measures. Among the areas of contention are the child tax credit, subsidies for childcare, paid family medical leave, prescription drug reform, and clean energy mandates. There are also concerns raised with the tax increases on businesses and high-income earners that pay-for the House legislation, including:

• Increasing the corporate tax rate from 21 percent to 26.5 percent;
• Increasing the top individual tax rate from 37 percent to 39.6 percent; and
• Capping the maximum allowable pass-through deduction at $500,000 for a joint return, $400,000 for an individual return, $250,000 for a married individual filing a separate return, and $10,000 for a trust or estate beginning January 1, 2022.

Given the uncertain future of the reconciliation measure, it remains unclear which elements of the $3.5 trillion House-prepared bill lawmakers will remove. Democrats have discussed removing provisions and reducing the time horizon on others to reduce the overall cost of the provisions.

TAUC continues to support the inclusions of provisions to provide tax incentives and Federal assistance for clean energy projects, such as:

• Expansion of eligibility for use of the ITC to include grid improvements, energy storage, transmission projects, rooftop solar and wind turbines;
• Extension of the 45Q carbon capture and sequestration incentive until the power and industrial sectors meet emission goals; and
• Lifting the per-manufacturer cap associated with the electric vehicle tax credit to encourage the electrification of the transportation sector.

We are also strongly advocating that any legislation includes provisions to ensure that energy infrastructure projects receiving taxpayer assistance comply with federal prevailing-wage requirements and incentivizes the utilization of registered apprentices.

Executive Orders on COVID Vaccines

On September 9th, President Biden issued two executive orders regarding COVID vaccines. The first would require all federal workers and employees of Federal contractors (and their subcontractors) to have a vaccine or regular negative test results. The White House Safer Federal Workforce Task Force released guidance requiring that all employees of federal contractors and subcontractors be vaccinated by December 8th. This requirement applies to all employees of the contractor or subcontractor including those who are not working on a federal government contract.

The second E.O. would require OSHA to issue an emergency temporary standard (ETS) in the coming months to require employers with 100 or more employees to ensure their workforce is fully vaccinated or require any unvaccinated workers to produce a negative COVID test at least once a week.

Blacklisting Amendment Included in FY22 NDAA

TAUC joined the other members of the Construction Employers of American (CEA) in sending a letter to the House expressing support for an amendment to H.R. 4350: The National Defense Authorization Act for Fiscal Year 2022 offered by Representative Pramila Jayapal (D-WA).

The amendment directs all federal agencies and department heads to automatically initiate a temporary or permanent debarment proceeding against federal contractors with at least four willful or repeated violations of the Fair Labor Standards Act from the previous four years. Firms in the construction industry often utilize unfair labor practices, including evading paying minimum wage, overtime, unemployment insurance, and engaging in wage theft, creating problems for those who follow the rules. The amendment was included in the House-passed bill as part of an en bloc package. If included in the final legislation, this amendment would help ensure that signatory contractors face a competitive landscape that allows employers to provide adequate wages, benefits, and pensions.

Pension Benefit Guaranty Corporation Releases Projection Report

On September 20th, the Pension Benefit Corporation (PBGC) released the agency's Fiscal Year (FY) 2020 Projections Report and a 5-Year Multiemployer Program Report. The reports show a significantly improved forecast for the Multiemployer Insurance Program resulting from additional funding provided in the American Rescue Plan Act of 2021 (ARP). Before Congress enacted the ARP, modeling suggested the Multiemployer Program would become insolvent in FY 2026. Following the infusion of federal funding, the median forecast suggests solvency until 2055. Additionally, the report shows a $75.6 billion improvement in the Multiemployer Program's projected net financial position from last year's negative $82.3 billion for FY 2029 (in 2019 dollars) to this year's negative $6.7 billion for FY 2030 (in 2020 dollars).

The 5-Year Multiemployer Program Report reviews the sustainability of the Multiemployer Program every five years to determine the premium levels needed to maintain the current guarantee levels and whether those levels must increase without raising premiums. The report concludes that current premium levels, including the statutory increase in the ARP starting in 2031, would not support an increase in the multiemployer benefit guarantee level at this time.

OSHA Also Considering Heat-Related Regulations

On September 20th, the White House announced actions by OSHA to protect laborers from heat exposure. Measures OSHA is expected to undertake include: implementing an enforcement initiative on heat-related hazards, developing a National Emphasis Program on heat inspections, and forming a National Advisory Committee on Occupational Safety and Health Heat Injury and Illness Prevention Work Group.

The 2022 National Emphasis Program will build on the existing Regional Emphasis Program for Heat Illnesses in OSHA's Region VI, covering Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. OSHA Area Directors will implement the following procedures:

• Prioritize inspections of heat-related complaints, referrals, and employer-reported illnesses, and initiate an onsite investigation where possible.
• Instruct compliance safety and health officers, during their travels to job sites to conduct an intervention (providing the agency's heat poster/wallet card, discuss the importance of easy access to cool water, cooling areas, and acclimatization) or opening an inspection when they observe employees performing strenuous work in hot conditions.
• Expand the scope of other inspections to address heat-related hazards where worksite conditions or other evidence indicates these hazards may be present.

OSHA plans to issue an Advance Notice of Proposed Rulemaking on heat injury and illness prevention in outdoor and indoor work settings. The advance notice will initiate a comment period allowing OSHA to gather perspectives on relevant topics, including heat stress thresholds, heat acclimatization planning, exposure monitoring, and strategies to protect workers.

OSHA to Restore Electronic Reporting for Workplace Illness and Injury

The Office of Management and Budget's Office of Information and Regulatory Affairs indicated that OSHA plans to issue a proposal to restore the requirement that employers must electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees. Currently, these establishments are only required to electronically submit information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). This electric submission requirement was initial established in the Obama Administration in 2016 and subsequently repealed by the Trump Administration in 2019.