On Dec. 10, the Biden administration released its Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions. The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to publish through the end of the year and into 2022. ABC has prepared a summary of the actions of interest to ABC members by agency.
U.S. Department of Labor
Occupational Safety and Health Administration
In April 2022, OSHA intends to issue a proposed rule on infectious diseases and examine regulatory alternatives for control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease. The agency listed several workplaces where these control measures might be necessary, including health care, emergency response, correctional facilities, homeless shelters, drug treatment programs and other occupational settings where employees can be at increased risk of exposure.
Further, in August 2022, OSHA is expected to issue a proposed rule on occupational exposure to crystalline silica to determine if revisions to Table 1 in the standard for construction may be appropriate. In 2019, ABC submitted comments on OSHA’s request for information on Table 1 of the silica standard as part of the Construction Industry Safety Coalition.
Additionally, in December 2021, OSHA plans to issue a proposed rule to restore provisions of the Obama administration’s 2016 Improve Tracking of Workplace Injuries and Illnesses Final Rule, also known as the electronic injury reporting and anti-retaliation final rule. The agency proposes to amend its recordkeeping regulation to restore the requirement to electronically submit to OSHA information from the OSHA Form 300 and OSHA Form 301 for establishments with 250 or more employees, which are required to routinely keep injury and illness records. Under the current regulation, these establishments are only required to electronically submit information from the OSHA Form 300A.
The COVID-19 Vaccination and Testing Emergency Temporary Standard rulemaking, which applies to employers with 100 or more employees, is also included in the agenda. On Nov. 30, OSHA announced that it was extending the comment period for the OSHA ETS to Jan. 19, 2022, to allow stakeholders additional time to review the ETS and collect information and data necessary for comment. In early January, ABC will circulate a comment letter template for ABC contractor members to submit to the docket.
Further, the agenda includes an advance notice of proposed rulemaking on heat injury and illness prevention in indoor and outdoor settings, which provides an overview of the problem of heat stress in the workplace and measures that have been taken to prevent it. The ANPRM seeks information on issues that OSHA can consider in developing the standard, including the scope of the standard and the types of controls that might be required. The public comment period on the ANPRM has been extended until Jan. 26.
The following rules were expected to be issued in November 2021, but there has been no action to date:
Wage and Hour Division
DOL’s Wage and Hour Division is expected to issue a proposed rule to update and modernize the regulations implementing the Davis-Bacon Act and other acts to provide greater clarity and enhance the usefulness of these acts in the modern economy. The department plans to issue the proposal in February 2022.
In April 2022, the WHD is expected to issue a proposed rule updating the “overtime” rule. WHD is reviewing the regulations at 29 CFR 541, which implement the exemption of bona fide executive, administrative and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements.
Employment and Training Administration
The agency is also expected to issue a proposed rule in May 2022 regarding one of the six primary indicators of performance within the regulations implementing the Workforce Innovation and Opportunity Act. As five of the six indicators are currently defined in the regulation, OSHA is seeking feedback to incorporate a standard definition for the sixth primary indicator, effectiveness in serving employers.
For more information on upcoming DOL rulemakings, see the department’s Fall 2021 Regulatory Agenda.
National Labor Relations Board
The National Labor Relations Board intends to issue a new proposed rulemaking on joint employer in February 2022.
Additional rules to monitor include:
Environmental Protection Agency
Council on Environmental Quality
More information on these and other rulemakings can be found in the Fall 2021 Regulatory Agenda. ABC will continue to provide updates on these and other rulemakings in Newsline.