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On May 9, the Trump administration released its Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions. The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to release through the end of the year and into 2019. 

Department of Labor

The Department of Labor (DOL) announced its plans to continue to roll back or revise many of the burdensome rules issued under the Obama administration, as well as issue new regulatory proposals that impact the construction industry:

Employee Benefits Security Administration (EBSA)

The EBSA plans to finish analyzing comments and work to finalize a rule to expand access to health coverage by allowing more employers to form association health plans (AHPs) in May 2018. ABC submitted comments to the EBSA on March 6, stating that AHPs provide a common-sense solution to increasing access to health care for individuals and reduce the burden on small businesses that have been negatively impacted by the Affordable Care Act. 

Employment and Training Administration (ETA)

In September 2018, the ETA plans to issue a proposed rule entitled Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations. This proposed rule comes at the instruction of President Trump’s E.O. 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 President and CEO Michael Bellaman served on the DOL’s Task Force on Apprenticeship Expansion, which was responsible for identifying strategies and proposals to expand and promote apprenticeship opportunities. 

Occupational Safety and Health Administration (OSHA)

OSHA plans to issue a proposal to reconsider, revise or remove provisions of Improve Tracking of Workplace Injuries and Illnesses, also known as the Electronic Injury Reporting and Anti-Retaliation final rule in July 2018. The final rule, which is currently in effect, requires many employers to submit detailed injury and illness records to OSHA electronically. Also, some forms of post-accident drug testing and accident-free incentive programs are deemed to be unlawfully retaliatory. ABC and a coalition of stakeholders filed a lawsuit against the final rule, which remains pending. 

OSHA also plans to solicit public feedback on the 2016 silica final rule through a request for information (RFI) to determine if revisions to Table 1 may be appropriate. Effective Oct. 23, 2017, OSHA began fully enforcing all appropriate provisions of the Silica in Construction Standard. Silica remains a top priority for ABC members, and ABC National continues to have conversations with the U.S. Department of Labor on the issue.

Office of Labor-Management Standards (OLMS)

In May 2018, OLMS plans to issue a final rule to rescind the persuader rule, officially named the Interpreting “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act. ABC submitted comments on the proposal to rescind the rule on Aug. 11.

Wage and Hour Division (WHD)

WHD plans to issue a proposed rule to revise the 2016 final overtime rule, officially named Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, in January 2019. ABC submitted comments on the DOL’s RFI on the overtime rule on Sept. 25, 2017. The proposal, which had been previously slated for October 2018, will determine what the salary level for exemption of executive, administrative and professional employees should be.

The WHD will also propose a rulemaking in October 2018 entitled Expanding Apprenticeship and Employment Opportunities for 16- and 17-year-olds Under the Fair Labor Standards Act (FLSA). According to the proposal’s abstract, the department will consider whether certain hazardous occupations orders, as well as the conditions that apply to the employment of all apprentices and student learners in hazardous occupations, should be updated to reflect the current economic and work environments and to allow for safe and meaningful apprenticeship opportunities and student-learner programs.

For more information on upcoming DOL rulemakings, see the department’s Spring 2018 agenda here.

National Labor Relations Board

The National Labor Relations Board (board) plans to finish reviewing responses to its RFI on the 2014 “ambush” elections final rule, also known as Representation-Case Procedures, in June 2018. ABC submitted comments on the board’s RFI on April 18, 2018. 

Additionally, the board announced that it is considering engaging in rulemaking to establish the standard for determining joint-employer status under the National Labor Relations Act. The item is currently listed as a long-term action. 

Environmental Protection Agency

The Environmental Protection Agency (EPA), along with the U.S. Army Corps of Engineers, will continue with plans to rescind the 2015 Clean Water Rule, also known as the definition of Waters of the United States (WOTUS) final rule. The agencies expect to release a final rule rescinding the 2015 WOTUS rule and recodifying the regulatory definition that existed prior to the 2015 final rule in November 2018 as well as a proposed rule to redefine WOTUS in August 2018 (with a final rule expected in September 2019). 

Equal Employment Opportunity Commission (EEOC)

The EEOC intends to issue a set of proposed rules in January 2019 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.