6 minute read
ABC’S REGULATORY ROUNDUP - Learn About the Latest Developments Affecting the Construction Industry
ABC has prepared a summary of Biden administration regulatory actions of interest to ABC members by agency. Here are some of the highlights.
U.S. Department of Labor
Improve Tracking of Workplace Injuries and Illnesses
ABC submitted comments urging OSHA to withdraw the proposed rule. Establishments with 100 or more employees in certain high-hazard industries are required to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. They are also required to include their legal company name when making electronic submissions to OSHA. Establishments with 20 to 249 employees in certain high-hazard industries will continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA once a year. Establishments with 250 or more employees that must routinely keep records under OSHA’s injury and illness regulation will also continue to be required to electronically submit information from their Form 300A to OSHA once a year. The data must be electronically submitted through OSHA’s Injury Tracking Application.
Heat Injury and Illness Prevention in Indoor and Outdoor Settings
In September, OSHA held six Small Business Advocacy Review panel meetings to gather input on a possible Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. Any interested party may submit comments, and the agency will include those comments in the public docket. The deadline to comment is December 23, and all such comments can be submitted via regulations.gov at OSHA-2021-0009-1059.
ABC strongly supports worker safety and protection from heat injury and illness, while maintaining flexibility for the fluid nature of the construction environment. Employers play a key role in providing training and awareness regarding heat protection, and ABC will continue to support members in ensuring preparedness for heatrelated issues through a wide range of resources.
Worker Walkaround Representative Designation Process ABC and its members submitted comments in opposition to the rule.
On Oct. 16, the U.S. Department of Labor’s Occupational Safety and Health Administration issued an extension of the comment period for the proposed rule, which would allow an employee to choose a third-party representative, such as an outside union representative, to accompany an OSHA inspector into nonunion facilities.
ABC joined 40 other Coalition for Workplace Safety members in sending a letter to the U.S. House Education and the Workforce Committee’s Subcommittee on Workforce Protections calling out OSHA for its proposed rule and the politicization of the agency that the rulemaking exemplifies.
Personal Protective Equipment in Construction
On July 20, 2023, OSHA issued a proposed rule clarifying the requirements for the fit of personal protective equipment in construction. On Sept. 18, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments to OSHA in response to the PPE proposed rule and urged the agency to clarify what it means by the terms “properly fit” and “additional hazards” and that the clarification include specificity so that covered industries better understand their compliance obligations. In addition, the CISC urges OSHA to clarify how it will enforce this regulation and delineate objective measures regarding what constitutes “improper fit.”
Infectious Diseases
In March 2024, 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 diseases. 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
The regulation’s drastic revisions to existing rules regarding government-determined prevailing wage rates that must be paid to construction workers on federal and federally assisted construction projects funded by taxpayers took effect on Oct. 23. ABC issued a statement opposing the new rule. Unfortunately, the DOL’s final rule disregards the feedback of ABC contractors, construction industry stakeholders, and thousands of small businesses urging the withdrawal of this unnecessary, costly, and burdensome regulation.
All contracts entered into after Oct. 23 are subject to the new rule’s provisions. Additionally, in certain situations, the rule may apply to existing contracts. This includes if a contract is changed to include substantial Davis-Bacon-covered work not within the scope of the original contract, if an option to extend a contract’s term is exercised, and for ongoing contracts not tied to the completion of a particular project.
ABC continues to consider options for a potential legal challenge to the final rule.
Overtime
On Sept. 8, 2023, the DOL published a new proposed rule that would alter the “white collar” overtime exemption regulations. Specifically, the proposal would significantly raise the minimum salary level needed to qualify as exempt.
The Partnership to Protect Workplace Opportunity, of which ABC is a steering committee member, created a grassroots toolkit for members to respond to the U.S. Department of Labor’s new overtime proposed rule.
ABC is disappointed that the DOL is moving forward with a proposed overtime rule since multiple industries, like construction, are still grappling with the lingering economic consequences of inflation, global supply chain disruptions, rising material prices, and workforce shortages, all of which push operational costs ever higher,” said Ben Brubeck, ABC vice president of regulatory, labor, and state affairs, in a statement immediately following the DOL announcement.
Office of Labor-Management Standards
Form LM-10 Employer Report
Employers must file the Form LM-10 report 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 submitted a comment letter to the DOL opposing the revision.
U.S. Department of the Treasury
Inflation Reduction Act Prevailing Wage and Apprenticeship Regulations
The U.S. Treasury Department’s Internal Revenue Service released a proposed rule and FAQs on provisions of the ABC-opposed Inflation Reduction Act, which will affect the developers, contractors, and workers that are building clean energy projects eligible for more than $270 billion in federal tax credits.
ABC also led a coalition of 13 construction and business associations in comments urging the IRS to provide regulatory clarity and to abandon its illegal and coercive scheme to push clean energy project developers into requiring PLAs.
In addition, ABC encourages ABC members and other contractors to connect with more than 400 government-registered apprenticeship programs offered by ABC chapters that can help contractors meet IRA apprenticeship requirements and win contracts for clean energy projects seeking the full IRA tax credits.
