Last week, the U.S. Department of Labor (DOL) released its Semiannual Regulatory Agenda – Fall 2013. The agenda provides a good indicator of issues the agency wants to address in the near future, however, often times the agencies do not adhere to the target dates listed. The agenda highlighted nearly 70 rules that they plan to address in the next 12 months along with 6 long-term regulatory efforts not expected to be considered in the next year. Many of the items have a significant impact on the construction industry and AGC will be providing comments where appropriate. An overview of some of the most significant items for the industry include:
Occupational Safety and Health Administration (OSHA)
- Reporting of Workplace Injuries and Illnesses: On Nov. 7, 2013, a proposed rule was issued to amend its current recordkeeping regulations to require the electronic submission of injury and illness information. The proposed rule would require construction firms with more than 250 employees to electronically submit detailed records on a quarterly basis to OSHA, which would then be made available to the public online. OSHA is also proposing that firms with 20 - 249 employees be required to submit only their summary of work-related injuries and illnesses once a year. AGC knows that OSHA already has access to this data during an inspection. However, we are concerned about potential problems with the public dissemination of this information. Our concerns include identifying who is responsible for any website inaccuracies; the possible failure to sanitize personal data of employees from the records; how data will be characterized by competitors; and the possible misinterpretation of data by people lacking the construction expertise to evaluate the specifics of a reported incident. The comment period ends in February 2014 however the agenda did not provide any greater detail on the timeline for the rule.
- Injury and Illness Prevention Program (I2P2): A proposed rule is expected in September 2014 that would require employers to implement and frequently update an Injury and Illness Prevention Program to address safety and health hazards, beyond those currently regulated. OSHA currently has voluntary Safety and Health Program Management Guidelines. AGC has encouraged OSHA to remove the requirement that companies develop company-wide safety programs to address these unregulated hazards. Instead, AGC has recommended that OSHA provide simple guidelines to employers to develop and implement an effective safety and health program that focuses on the regulated hazards that are significant threats in the workplace.
- Occupational Exposure to Crystalline Silica: On Oct. 25, it was announced that the public comment period on its proposed rule is extended by 47 days – to Jan. 27, 2014. AGC submitted a request to extend the deadline by 90 days in order to best respond to the proposed rule’s 87 detailed questions. This extension now allows AGC to work with its members to properly formulate an effective response. AGC is also working with a coalition of nearly two dozen construction industry trade associations that represent all facets of the industry to craft a response to the proposed rule. AGC has numerous concerns with the rule, which, as it stands, would reduce the permissible exposure limit (PEL) to airborne crystalline silica in half. AGC’s preliminary analysis of the rule reveals that complying with the rule is neither technologically or economically feasible; control methods outlined in the rule contradict existing safety practices in the industry; and OSHA has failed to detail how the new requirements would reduce illnesses. The industry has made significant progress in the last four decades in preventing silica-related disease under existing regulations and AGC believes the real problem is the failure to achieve compliance with the current PEL. Correcting that failure should be the focus of OSHA's efforts and will likely achieve the best results. AGC is soliciting input from members on the compliance costs and regulatory burdens the new rule would place on the industry. For more information on the proposed rule and to provide input to AGC, please visit the AGC website.
- Confined Spaces in Construction: A final rule is expected in February 2014 for confined space.
- Crane Operator Certification: A proposed rule is expected this month as a follow-up to the requirements for crane and derricks used in construction. The separate rulemaking is a result of requirement to have crane operators certified by November 2014 and the responses from the industry that the rule would provide problems and limitations with the process. The possible rulemaking on operator qualification would extend the enforcement and certification of operators by three years.
- Construction Contractors' Affirmative Action Requirements: A proposed rule is expected in April 2014 that would establish a new method for meeting affirmative action goals and requirements for minorities and women in construction – the first change to the process since 1980.
- Compensation Data Collection Tool: In 2010, OFCCP announced that it is working on a Compensation Data Collection Tool to identify contractors violating sex and race-based compensation discrimination laws. AGC submitted comments explaining why the use of a tool such as this one should be modified or not required at all. The new agenda doesn’t list the issue as a priority, but suggests details about the tool will emerge in January 2014 in the form of a notice of proposed rulemaking, hopefully with AGC’s suggested modifications.
- Persuader Agreements: A final rule is expected on the Persuader rule in March 2014. The rule would limit the “advice” exception under the Labor-Management Reporting and Disclosure Act so that all consultation with labor lawyers and/or consultants will be subject to disclosure to DOL. This rule will significantly impact employers’ ability to retain counsel.
- Right to Know: Listed under a long-term action on their agenda, the Right to Know regulation would require employers to provide written notice to all workers defining their classification status as an independent contractor or employee. In addition, the anticipated regulations would require written notification of an employee’s classification as exempt or non-exempt, and detail the decision factors used to make the determination. No timeline for the regulation was listed in the agenda, but remains in WHD’s long-range planning schedule.
- Quickie Elections: The NLRB only listed one long-term action on their agenda – the Quickie Election rule, which would compress the time frame between a call by a union for a vote over union representation and the election. The rule as initially finalized in 2011, but legal challenges prevented the rule from becoming effective. Now that the NLRB is operating with a full board, it’s expected that they again could finalize the rule; however, no date has been announced.