Build Back Better … in 2022? 

Over the last several weeks, the Buzz has been monitoring congressional Democrats’ efforts to pass the Build Back Better Act, a $1.7 trillion social-spending package containing, among other things, proposals for a federal paid-leave program and brand-new, increased civil penalties for employer violations of various federal labor laws. The U.S. House of Representatives passed its version of the bill on November 19, 2021. Democratic leaders in the U.S. Senate were trying to pass their version of the legislation before leaving for the Christmas break next week, but it now looks increasingly unlikely that a vote on the bill will occur before then. There is an expression in Washington, D.C.: if you have the votes, you vote. It appears that the Democrats do not yet have the votes they need to pass the bill—and they will need all 50 Democrats and Independents in the Senate to support the package. At the moment, chances are we will be monitoring the progress of the Build Back Better legislation in 2022.

Biden Administration Releases Regulatory Road Map. 

Last week, the Buzz wondered aloud when the administration would release the fall 2021 regulatory agenda. Just hours after the Buzz was released, the administration did just that. Below are some of the highlights of what the regulated community can expect in the coming months (as a reminder, the dates are aspirational in nature).

U.S. Department of Labor

• Wage and Hour Division

  • Overtime. By April 2022, the Wage and Hour Division (WHD) will revisit—for the third administration in a row—the “regulations implement[ing] the exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements.” Despite having issued an update of the regulations that took effect in January 2020, the WHD states that “[r]egular updates promote greater stability, avoid disruptive salary level increases that can result from lengthy gaps between updates and provide appropriate wage protection.”

  • Davis-Bacon Act. By February 2022 the WHD will issue a proposal “to update and modernize the regulations implementing the Davis-Bacon and Related Acts to provide greater clarity and enhance their usefulness in the modern economy.”

• Occupational Safety and Health Administration

  • COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). No further action is listed for the interim final rule that has been blocked by a federal court.

  • COVID-19 Healthcare ETS. The agenda states “Next Action Undetermined” for the ETS applicable to the healthcare industry that was issued on June 10, 2021, and is set to expire on December 21, 2021.

  • State plans: Hello, MA, Goodbye, AZ? The agenda states that by May 2022 the Occupational Safety and Health Administration (OSHA) will issue a notice of proposed rulemaking on whether to approve a forthcoming plan from Massachusetts to establish a state OSHA plan covering state and local government employees. Additionally, before the end of the year, OSHA is expected to issue a proposed notice revoking Arizona’s state plan due to its alleged noncompliance with OSHA’s healthcare ETS.

  • Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. The deadline for public comment on the advanced notice of proposed rulemaking as reflected in the agenda is outdated. The comment deadline has been extended to January 26, 2022.

  • Improve Tracking of Workplace Injuries and Illnesses. By the end of the year, OSHA is expected to issue a proposal “to amend its recordkeeping regulation to restore the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).”

  • Tree Care. OSHA intends to propose a tree care standard by June 2022.

• Office of Federal Contract Compliance Programs

  • Investigations. By February 2022, Office of Federal Contract Compliance Programs (OFCCP) intends to modify the 2020 final rule which established parameters for resolving potential employment discrimination and issuing predetermination notices (PDN) and Notices of Violation (NOV). OFCCP will also propose “other related changes to the pre-enforcement notice and conciliation process.”

  • Subcontract Notification. By April 2022, OFCCP will propose regulations “requiring contractors to provide notice to OFCCP when they award supply and service subcontracts” that would “enabl[e] it to schedule supply and service subcontractors for compliance evaluations.”

National Labor Relations Board

• Joint Employer. Not surprisingly, the National Labor Relations Board (NLRB) expects that by February 2022, it “will engage in rulemaking on the standard for determining whether two employers, as defined in Section 2(2) of the National Labor Relations Act (Act), are a joint employer under the Act.” This effort will likely propose eliminating or amending the Board’s 2020 bright-line test and replacing it with a broader, more amorphous joint-employer standard.

U.S. Department of Homeland Security – U.S. Citizenship and Immigration Services

• H-1B Reform. U.S. Citizenship and Immigration Services (USCIS) proposes to amend “the regulations relating to [the] ‘employer-employee relationship,’” “implement new requirements and guidelines for site visits,” “address ‘cap-gap’ issues,” “bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system,” and “clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.” USCIS expects to release the proposal by May 2022.

EEOC Updates COVID-19 Guidance Relating to “Disability.” 

On December 14, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance with new frequently asked questions (FAQs) to address circumstances in which COVID-19 may be a “disability” under Title I of the Americans with Disabilities Act (ADA). Highlights of the guidance include the following:

• “[D]epending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability.”

• The guidance distinguishes mild, temporary COVID-19–related conditions (such as sore throat, fever, or headaches that last a few weeks) from COVID-19 symptoms that substantially limit a major life activity (such as “heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months”) and that may constitute a disability under the ADA.

• “Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and such assessments cannot be made categorically.”

NLRB Extends “Consequential Damages” Deadline. 

The NLRB extended the deadline for stakeholders to submit comments in response to the issue of whether the Board should award consequential damages as a remedy for unlawful layoffs or terminations. The Buzz previously wrote about the case. Interested stakeholders now have until January 10, 2022, to file briefs with the Board on the matter.

Open House. 

On December 16, 1857, the House of Representatives met for the first time in its newly constructed chamber—the same chamber it meets in currently. Construction on both wings of the U.S. Capitol began in 1851 in order to accommodate the growing number of representatives and to improve ventilation and acoustics. Unfortunately for the 35th Congress, the new accommodations did nothing to soothe the growing political tensions that would eventually result in civil war just a few years later. In fact, just several weeks after the opening of the new chamber, a brawl broke out in the House over a debate regarding the entry of Kansas into the Union. More than 30 members participated in the fisticuffs, and the melee only ended when two Republicans from Wisconsin—John “Bowie Knife” Potter and Cadwallader Washburn—tore off Mississippi Democrat William Barksdale’s hairpiece. The incident serves as a reminder that a bad as our current political climate may be, it has always been challenging.