On Jan. 4, the Biden administration released its . 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. ÀÏÅ£Ó°ÊÓhas prepared a summary of the actions of interest to ÀÏÅ£Ó°ÊÓmembers 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 . 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). ÀÏÅ£Ó°ÊÓsubmitted comments opposing the proposal on June 30. According to the regulatory agenda, .

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 , submitted  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, .   

Powered Industrial Truck Design Standard Update

On May 17, 2022, ABC, as a steering committee member of CISC submitted  to OSHA voicing compliance and cost concerns on the proposed rule on powered industrial trucks design standard update. According to the regulatory agenda, .

Personal Protective Equipment in Construction

The agency was expected to issue a 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  in response to OSHA’s request for additional comment on its “potential provisions or approaches” to a . CISC opposes OSHA’s proposal to expand coverage under any promulgated final rule and include certain construction work in health care settings. ÀÏÅ£Ó°ÊÓalso submitted  on April 22 as a steering committee member of the . The CWS believes unequivocally that OSHA is not permitted to, and must not, issue a permanent standard after having . .

Welding in Construction Confined Spaces

In February 2023, OSHA intends to issue a 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

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.”

Infectious Diseases

In September 2023, OSHA intends to issue a 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 “purporting” to update and modernize the regulations implementing the Davis-Bacon Act and Related Acts. On May 17, ÀÏÅ£Ó°ÊÓfiled 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  to gather insight on the potentially harmful impacts of this proposal and utilized the data gathered in its comments.

Independent Contractor

In May 2023, the WHD is expected to issue a . On Dec. 13, 2022, ABC

submitted comments opposing the DOL’s , 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.” ÀÏÅ£Ó°ÊÓurges the DOL to withdraw the new proposed rule and retain the ABC-supported current 2021 final rule.

Overtime

In May 2023, the WHD is expected to issue a  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 , as well as 92 other organizations, sent a  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 . On Oct. 13, 2022, ÀÏÅ£Ó°ÊÓsubmitted a comment letter to DOL’s Office of Management and Labor Standards regarding its . 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.” ÀÏÅ£Ó°ÊÓopposed 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 .

Federal Acquisition Regulation Council

Use of Project Labor Agreement for Federal Construction Projects 

FAR intends to issue a in March 2023. On Oct. 20, 2022, ÀÏÅ£Ó°ÊÓsubmitted 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,  and a  urging the administration to withdraw President Biden’s Feb. 4 , the  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 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

Joint Employer

. On Dec. 7, ÀÏÅ£Ó°ÊÓsubmitted comments to the NLRB urging the board to withdraw the new  and retain the current 2020 NLRB final rule, which provides clear criteria for companies to apply when determining status. In the comments, ÀÏÅ£Ó°ÊÓargued 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. ÀÏÅ£Ó°ÊÓalso joined the  submitted by the ABC-led Coalition for a Democratic Workplace.

Election Protection Rule

. On Nov. 22, the ABC-led CDW  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  from Jan. 3 to Feb. 2, 2023. ÀÏÅ£Ó°ÊÓwill be filing comments opposing the proposed rule.

Additional Rules to Monitor Include:

Environmental Protection Agency

• —Proposed rule, November 2023

Council on Environmental Quality

• —Proposed rule, January 2023

More information on these and other rulemakings can be found in the . ÀÏÅ£Ó°ÊÓwill continue to provide updates on these and other rulemakings in Newsline.