On Nov. 20, the Trump administration released its Fall 2019 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 2020.
U.S. Department of Labor
In the Fall Unified Agenda, DOL’s Employment and Training Administration announced plans to issue the apprenticeship final rule, titled Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations, in April 2020. This proposed rule, which was issued in June, came at the instruction of President Trump’s Executive Order 13801, Expanding Apprenticeships in America, which asks the secretary of labor, in consultation with the secretaries of education and commerce, to consider proposing regulations that establish guidelines for third parties to certify industry-recognized apprenticeship programs. ABC submitted comments on the proposed rule.
The Occupational Safety and Health Administration plans to issue a proposed rule to amend the Welding and Cutting Standard in construction to eliminate any perceived ambiguity about the definition of "confined space" that applies to welding activities in construction. The agency expects to release the proposal in February 2020. OSHA is also expected to issue a proposed rule with corrections and amendments to the August 2010 final standard for cranes and derricks, which includes a large number of provisions designed to improve crane safety and reduce worker injury and fatality, in May 2020.
In June 2020, OSHA expects 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. ABC submitted comments on OSHA’s request for information on table 1 of the silica standard as part of the Construction Industry Safety Coalition.
In Oct. 2018, OSHA issued a memorandum clarifying its position on workplace safety incentive programs and post-incident drug testing included in 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. OSHA plans to issue a proposed rule in November 2020 to memorialize its memorandum position regarding post-incident drug testing or safety incentive programs.
The Wage and Hour Division is expected to issue final rules for its regular rate and joint employer status under the Fair Labor Standards Act rulemakings in November and December 2019, respectively. ABC submitted comments on both regular rate and joint employer proposals in June. Additionally, WHD plans to issue an RFI on the Family and Medical Leave Act of 1993 to solicit comments on ways to improve its regulations to better protect and suit the needs of workers and reduce administrative and compliance burdens on employers. The department plans to issue the RFI in November 2019.
For more information on upcoming DOL rulemakings, see the department’s Fall 2019 agenda.
National Labor Relations Board
It is expected the NLRB will issue its final rule on the joint employer standard in December 2019. ABC and the ABC-led Coalition for a Democratic Workplace submitted comments in support of the NLRB’s joint employer proposal. The NLRB also plans to revise its representation election regulations. The rulemaking is expected to be split into two phases and focus on amendments to the board’s representation case procedures adopted by the 2014 “ambush” election final rule and amendments relating to the procedures for the conduct of representation elections under the board’s representation case procedures. The NLRB plans to issue the final rules in November 2019 and January 2020, respectively.
In February 2020, the NLRB also plans to issue a proposed rule establishing standards under the National Labor Relations Act for access to an employer's private property.
Environmental Protection Agency
Following the September 2019 final rule repealing the 2015 Clean Water Rule, also known as the Waters of the United States final rule, the Environmental Protection Agency and U.S. Army Corps of Engineers expect to issue a final rule in January 2020 to re-evaluate and revise the definition of WOTUS in accordance with Executive Order 13778.
Equal Employment Opportunity Commission
The Equal Employment Opportunity Commission intends to issue a set of proposed rules in January 2020 to amend its regulation of employer-sponsored wellness programs. In August 2017, the U.S. District Court for the District of Columbia invalidated the EEOC’s final regulations on the operation of voluntary wellness programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, and ordered the EEOC to reconsider the rulemakings. In accordance with the court’s ruling, the EEOC rescinded portions of its ADA and GINA wellness rules on Dec. 20, 2018.
The EEOC also intends to issue a proposed rule in December explaining the agency’s interpretation of when an entity qualifies as a joint employer based on the definitions of the statutory terms "employee" and/or "employer" under the federal EEO laws.