On Jan. 4, the Biden administration released its Fall 2022 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 in 2023. It also includes deadlines from 2022 that were missed. 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
Improve Tracking of Workplace Injuries and Illnesses
On March 30, 2022, OSHA issued a proposed rule to restore provisions of the Obama administration’s 2016 Improve Tracking of Workplace Injuries and Illnesses final rule. Under the new proposal, covered establishments with 100 or more employees in certain high-hazard industries—including construction—will be required to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year. In addition, the U.S. Department of Labor plans to share the information on a public website (although indicating it will remove individuals’ names and contact information). ABC submitted comments opposing the proposal on June 30. According to the regulatory agenda, OSHA intends to issue a final rule in March 2023.
Heat Injury and Illness Prevention in Indoor and Outdoor Settings
On Oct. 27, 2021, OSHA issued an advance notice of proposed rulemaking on heat injury and illness prevention in indoor and outdoor settings, which began the process to consider a heat-specific workplace rule. On Jan. 26, 2022, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments on the ANPRM. CISC members feel strongly that a regulatory approach—if adopted—must be simple and should integrate the key concepts of “water, rest, shade.” According to the regulatory agenda, the agency plans to initiate a Small Business Regulatory Enforcement Fairness Act panel in January 2023.
Powered Industrial Truck Design Standard Update
On May 17, 2022, ABC, as a steering committee member of CISC submitted comments to OSHA voicing compliance and cost concerns on the proposed rule on powered industrial trucks design standard update. According to the regulatory agenda, OSHA intended to analyze the comments from the NPRM through December 2022.
Personal Protective Equipment in Construction
The agency was expected to issue a proposed rule clarifying the requirements for the fit of personal protective equipment in construction in December 2022.
Occupational Exposure to COVID-19 in Healthcare Settings
On April 22, 2022, ABC—as a steering committee member of CISC—submitted comments in response to OSHA’s request for additional comment on its “potential provisions or approaches” to a final Occupational Exposure to COVID-19 in Healthcare Settings rule. CISC opposes OSHA’s proposal to expand coverage under any promulgated final rule and include certain construction work in health care settings. ABC also submitted comments on April 22 as a steering committee member of the Coalition for Workplace Safety. The CWS believes unequivocally that OSHA is not permitted to, and must not, issue a permanent standard after having withdrawn the health care emergency temporary standard in December 2021. A final rule was slated for December 2022.
Welding in Construction Confined Spaces
In February 2023, OSHA intends to issue a proposed rule to amend the Welding an Cutting Standard in construction to eliminate any perceived ambiguity about the definition of “confined space” that applies to welding activities in construction.
Worker Walkaround Representative Designation Process
A proposed rule is targeted for May 2023 to “clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the Compliance Safety and Health Officer such person is reasonably necessary to an effective and thorough physical inspection.”
In September 2023, 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.
Wage and Hour Division
Updating the Davis-Bacon and Related Acts Regulations
In February 2023, the DOL’s Wage and Hour Division is expected to issue a final rule “purporting” to update and modernize the regulations implementing the Davis-Bacon Act and Related Acts. On May 17, ABC filed nearly 70 pages of comments opposing the proposed rule, which would reverse prior reforms, expand Davis-Bacon requirements to new industries and activities and increase administrative burdens on federal contractors. ABC also surveyed contractor members to gather insight on the potentially harmful impacts of this proposal and utilized the data gathered in its comments.
In May 2023, the WHD is expected to issue a final rule. On Dec. 13, 2022, ABC
submitted comments opposing the DOL’s independent contractor proposed rule, which eliminates the ABC-supported 2021 final rule’s emphasis on two “core” factors—a worker’s control over their work and their opportunity for profit or loss—both of which are paramount in making an independent contractor determination. Instead, the department’s approach is to restore a “totality-of-the circumstances” analysis of the “economic reality test.” ABC urges the DOL to withdraw the new proposed rule and retain the ABC-supported current 2021 final rule.
In May 2023, the WHD is expected to issue a proposed rule updating the “overtime” rule. WHD is reviewing the regulations that implement the exemption of bona fide executive, administrative and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements. On May 11, ABC, as a steering committee member of the Partnership to Protect Workplace Opportunity, as well as 92 other organizations, sent a letter to Secretary of Labor Marty Walsh urging him to abandon or at least postpone issuing the announced proposed rulemaking.
Office of Labor-Management Standards
Form LM-10 Employer Report
DOL intends to issue a final rule in February 2023. On Oct. 13, 2022, ABC submitted a comment letter to DOL’s Office of Management and Labor Standards regarding its proposed revisions to the LM-10 Employer Report form. Employers must file this form with the OLMS to disclose certain payments, expenditures, agreements and arrangements, including the hiring of outside labor relations consultants to help inform their employees regarding union organizing or collective bargaining, known as “persuader activities.” ABC opposed the proposed revision, which would add a checkbox to Form LM-10 requiring employers to report whether they were federal contractors or subcontractors in the prior fiscal year. The proposed revision would also require employers to provide their Unique Entity Identifier and contracting agency or agencies, if applicable.
For more information on upcoming DOL rulemakings, see the department’s Fall 2022 Regulatory Agenda.
Federal Acquisition Regulation Council
Use of Project Labor Agreement for Federal Construction Projects
FAR intends to issue a final rule in March 2023. On Oct. 20, 2022, ABC submitted more than 40 pages of comments to the FAR calling on the Biden administration to withdraw a controversial proposed rule that would require anti-competitive and inflationary project labor agreements on federal construction contracts of $35 million or more.
ABC’s opposition is joined by more than 50 members of the U.S. Senate and House, 18 Republican governors and a diverse coalition of construction industry, small business and taxpayer advocates urging the administration to withdraw President Biden’s Feb. 4 Executive Order 14063, the Aug. 19 proposed rule and additional policies promoting PLA mandates on federal and federally assisted construction projects. Government-mandated PLA schemes needlessly increase costs and exacerbate the construction industry’s skilled labor shortage of 650,000 because they exclude almost nine out of 10 of America’s construction workforce from participating in critical infrastructure projects.
Prohibition on the Use of Reverse Auctions for Complex, Specialized or Substantial Design and Construction Services
The U.S. Department of Defense, General Services Administration and NASA are expected to issue a proposed rule by April 2023 to amend the FAR to implement policies addressing the prohibition on the use of a reverse auction for the award of a contract for complex, specialized or substantial design and construction services. These prohibitions are the result of Public Law 11728, which amended the Consolidated Appropriations Act of 2020, to correct a provision on the prohibition on the use of a reverse auction.
National Labor Relations Board
A final rule is expected in August 2023. On Dec. 7, ABC submitted comments to the NLRB urging the board to withdraw the new proposed joint employer rule and retain the current 2020 NLRB final rule, which provides clear criteria for companies to apply when determining status. In the comments, ABC argued that the new proposed rule will cause great confusion and uncertainty among construction contractors, specifically small business owners. More than 11,000 comments were submitted to the docket. ABC also joined the comments submitted by the ABC-led Coalition for a Democratic Workplace.
Election Protection Rule
A final rule is slated for August 2023. On Nov. 22, the ABC-led CDW requested that the NLRB issue a 30-day extension to the comment period for the board’s new notice of proposed rulemaking addressing election-blocking charges, voluntary recognition and construction industry bargaining relationships. On Nov. 29, the NLRB announced it is extending the comment deadline from Jan. 3 to Feb. 2, 2023. ABC will be filing comments opposing the proposed rule.
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 2022 Regulatory Agenda. ABC will continue to provide updates on these and other rulemakings in Newsline.