The D.C. Download, April 2022

April 20 2022

Government, Legislative Affairs, TAUC News

After President Biden signed the full-year fiscal year 2022 spending bill into law last month, lawmakers quickly initiated the fiscal year 2023 appropriations process. Following this enactment, the White House pivoted to restarting negotiations with Senator Joe Manchin (D-WV) to craft a slimmed-down reconciliation bill. Manchin recently expressed support for a package containing $500 billion in climate-related investments and $1 trillion in new taxes on high-income individuals and businesses to reduce the deficit. However, relatively little progress has been made since these discussions began.

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

Davis-Bacon Act Rulemaking

As reported last month, the DOL has issued a Notice of Proposed Rulemaking (NPRM) to update and modernize federal prevailing wage protections on federal and federally assisted construction projects under the Davis-Bacon and Related Acts (DBA). This proposed rule is designed to address the substantial erosion to the DBA’s regulatory framework that has occurred over the past 40 years, which has undermined the Act’s intent of providing wage protections for workers and a level playing field for contractors. Comments are due May 17, 2022, and can be submitted here.

On a related note, the Associated Builders and Contractors (ABC) has requested a 60-day extension of the comment period.  It is not clear if the extension will be granted.

Presidential Budget Request for the Department of Labor

President Biden’s fiscal year 2023 budget request called for $14.6 billion in discretionary funding for the Department of Labor (DOL), an increase of $2.2 billion or 18% compared to fiscal year 2021 enacted levels. Relevant figures for specific funding levels include:

• $2.2 billion for worker protection agencies, an increase of $400 million compared to last year, including:
  • $57 million for the Wage and Hour Division (WHD)
  • $89 million for Occupational Safety and Health Administration (OSHA)
  • $48 million for the Employee Benefits Security Administration (EBSA)
• $303 million to expand registered apprenticeship opportunities while increasing access for historically underrepresented groups, including people of color and women
• $100 million for a new Sectoral Employment through Career Training for Occupational Readiness program
• $3.4 billion to improve the unemployment insurance system
• $3.7 billion for Workforce Innovation and Opportunity Act State Grants

OSHA Announces Proposed Rule to Amend Occupational Injury and Illness Recordkeeping

On March 30th, OSHA issued a proposed rule and request for comments in the Federal Register relating to its occupational injury and illness recordkeeping regulation, 29 CFR 1904.41. The existing regulation requires certain employers to electronically submit injury and illness information to OSHA. The proposed rule would require firms in high-hazard industries – which includes construction — to electronically submit information from their Log of Work-Related Injuries and Illnesses, as well as their Injury and Illness Incident Report. It would also compel employers to send their Annual Summary of Work-Related Injuries and Illnesses to OSHA.

Specifically, the proposed rule would:

• Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A to OSHA annually.
• Require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year.

Establishments with 20 or more employees in certain high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA annually.

Stakeholders have until May 31st to submit comments.

OSHA Seeks Comments on Rules for Healthcare Workers

OSHA scheduled an informal public hearing and partially reopened the rulemaking record to receive stakeholder comments to develop a final standard to protect healthcare and healthcare support service workers from workplace exposure to the COVID-19 virus. Interested participants must provide feedback before April 22nd, and the hearing will take place the following week, on Wednesday, April 27th.

OSHA issued an emergency temporary standard to protect workers in healthcare settings in June of 2021. The reopened rulemaking record will allow OSHA to evaluate new data and feedback, including the following issues:

• Alignment with the Centers for Disease Control and Prevention’s recommendations for healthcare infection control procedures
• Additional flexibility for employers
• Removal of scope exemptions
• Tailoring controls to address interactions with people with suspected or confirmed COVID-19
• Employer support for employees who wish to be vaccinated
• Limited coverage of construction activities in healthcare settings
• COVID-19 recordkeeping and reporting provisions
• Triggering requirements based on community transmission levels
• The potential evolution of SARS-CoV-2 into a second novel strain
• The health effects and risk of COVID-19 since the ETS was issued

OSHA to Host Stakeholder Meeting on Heat-Related Hazards

OSHA will host a virtual stakeholder meeting regarding the agency’s initiatives to protect workers from heat-related hazards on May 3, 2022.  Earlier this month, OSHA announced a new National Emphasis Program (NEP) designed to protect millions of workers from heat illness and injuries.  The NEP will include targeted enforcement activities, as well as employer compliance assistance and public outreach efforts. This is part of the Biden administration’s interagency effort to protect workers and communities from extreme heat and rising temperatures.

At the meeting, OSHA will provide an overview of its plan to protect workers from heat-related hazards.  The agency will also take public comment and testimony to provide stakeholder feedback from stakeholders on heat injury and illness prevention activities.

Senate Rejects David Weil for Department of Labor Wage and Hour Division Chief

A group of moderate Senate Democrats — Joe Manchin, Mark Kelly (D-AZ), and Kyrsten Sinema (D-AZ) — worked with a united Republican caucus to vote down David Weil on the Senate floor to serve as Administrator of the Wage and Hour Division (WHD). Weil previously held the position during the Obama administration from 2014 to 2017. Opposition to his appointment stemmed from his views and academic work on overtime rules, joint employers, and independent contractor status. The business community also vocally opposed him, with trade associations applauding the vote.

The White House must nominate another candidate to fill the position. WHD has not had an administrator in several years. Jessica Looman currently serves as the acting executive. Weil officially withdrew himself from consideration later in the week via a tweet from Labor Secretary Marty Walsh.