EHS Professional – August 5, 2021

Beltway Buzz – Ogletree & Deakins

It’s Infrastructure Week! The U.S. Senate this week began debating the Infrastructure Investment and Jobs Act (H.R. 3684), the 2,700-page infrastructure bill that has been the subject of heated negotiations over the last several weeks. (As a point of reference, the first published edition of Leo Tolstoy’s War and Peace was merely 1,225 pages long.) Here are a few things to note about the bill and the process going forward.

• Hard infrastructure. The bill provides $1.2 trillion in funding for the building and repair of roads, bridges, ports, airports, public transit, broadband, power grid modernization, and other projects. The bill also takes steps to address climate change (it provides funding related to electric vehicles, alternative fuels, and carbon capture, for example), shrink red tape associated with major construction projects, and reduce pollution.
• No PRO Act. Importantly, the bill does not contain provisions of the PRO Act, and it does not address paid leave, child care, Medicare expansion, unemployment insurance reforms, or other “social infrastructure” matters. Congressional Democrats plan to address these and other issues in subsequent legislation using the reconciliation process, which would allow them to pass such a bill with a simple majority vote.
• ERTC shortened. Employers may want to note that the employee retention tax credit (ERTC), which was established by the CARES Act and extended in the American Rescue Plan Act of 2021, will terminate early under the bill. Currently, employers can claim the retention credit through the end of 2021, but this date would be pushed forward to October 1, 2021 (though certain small businesses that began operations in 2020 may claim the credit for the remainder of 2021). The provision is included as a funding mechanism for the bill.
• Bipartisan push. The bill has significant bipartisan support, as 17 Senate Republicans voted with all Democrats to begin debate on the bill. In addition, the bill enjoys support from groups such as the National Association of Manufacturers and the U.S. Chamber of Commerce, as well as from the AFL-CIO.
• What comes next? As for timing (always hard to predict), Senate Majority Leader Chuck Schumer has indicated that he would like to wrap up the amendment process quickly, which means that final passage of the legislation could take place sometime next week or sooner. Assuming the bill passes the Senate, the U.S. House of Representatives will then have an opportunity to address it. Speaker of the House Nancy Pelosi has promised that she would not address the bill until the second “social infrastructure” bill passes the Senate. This all means that we could be continuing this discussion about both bills into the fall.

Pregnancy Accommodation Bill—One Step Closer to Law? On August 3, 2021, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) advanced the Pregnant Workers Fairness Act (PWFA) (H.R. 1065). The lopsided 19–2 committee vote on approval perhaps portends a favorable outcome for the bill on the Senate floor. The PWFA—which would require employers to make reasonable accommodation for pregnant workers (such as by providing more frequent bathroom breaks or easing lifting requirements)—has been on the Buzz’s radar for a while now. With this action this week, the bill moves one step closer to President Joe Biden’s desk.

Weil Nomination Slowed. In other Senate HELP Committee news, the committee voted 11–11 on David Weil’s nomination to be administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division. This means that Weil’s nomination (similar to the nomination of NLRB General Counsel Jennifer Abruzzo) will need an additional vote from the full Senate in order to be discharged from the committee. Weil has the numbers on his side (ever so slightly), and he, like Abruzzo, will likely be confirmed in due course. As the Buzz has previously discussed, Weil is known for his views on the “fissured workplace,” as well as a narrow interpretation of what it means to be an “independent contractor” and an expansive interpretation of “joint employer.”

Fed. Contractor Minimum Wage Reg. Deadline (Slightly) Extended. The DOL extended the deadline for stakeholders to submit comments in response to the proposed regulations implementing an increase in the minimum wage for certain employees of federal contractors. Interested parties probably should not think about booking a late-summer vacation, though: the period has only been extended from the original date of August 23, 2021, to August 27, 2021.

Congress Continues to Target Arbitration. House Democrats have reintroduced the Restoring Justice for Workers Act, which would “prohibit predispute arbitration agreements that require arbitration of work disputes.” The bill represents yet another front in the political battle over arbitration agreements. As the Buzz noted recently, another bill in the 117th Congress—the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (H.R. 4445/S. 2342)—proposes to limit the enforceability of certain arbitration agreements.

Congressional Gold Medals. The 2020 Summer Olympics wraps up on August 8, 2021. The Olympics and politics have always been intertwined, so it should come as no surprise that these former U.S. Olympians subsequently made their way into politics.

• Bob Mathias won gold medals in the decathlon in the Summer Olympic Games in London (1948) and Helsinki (1952), and he subsequently represented California’s 18th congressional district in the U.S. House of Representatives (1967–1975).
• Wendell Anderson won a silver medal playing ice hockey for the United States in the 1956 Winter Olympics. He was later elected governor of Minnesota. When Minnesota senator Walter Mondale resigned his position after being elected vice president of the United States in 1976, Anderson essentially appointed himself as Mondale’s successor, and served two years in the U.S. Senate (1976–1978).
• Tom McMillen earned a silver medal playing basketball for the United States in the 1972 Summer Olympics in Munich. The U.S. men’s team lost to the Soviet Union, 51–50, and became the first U.S. men’s basketball team not to win a gold medal in the Olympics (after having won gold at the previous seven Olympic Games—all the way back to the 1936 Olympics in Berlin). The final seconds of the game were mired by an officiating controversy, and the U.S. team refused to receive their silver medals. After completing a successful professional basketball career, McMillen served in the U.S. House of Representatives (1987–1993) from Maryland’s 4th congressional district.
• Bill Bradley won a gold medal in basketball in the 1964 Summer Olympics in Tokyo. He subsequently won two National Basketball Association championships playing for the New York Knicks before representing New Jersey in the U.S. Senate (1979–1997).
• Ben Nighthorse Campbell also represented the United States in the 1964 Summer Olympics, participating in judo. He later represented Colorado in the U.S. House of Representatives (1987–1993) and in the U.S. Senate (1993–2005).
• Jim Ryun (whom the Buzz previously profiled) also participated in the 1964 Summer Olympics as a middle-distance runner for the United States, and he also participated in the Olympics in Mexico City (1968) and Munich (1972). He then represented Kansas’s 2nd congressional district in the U.S. House of Representatives (1996–2007).

OSHA – Request for Information on the Mechanical Power Presses Standard

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is requesting information and comment on issues related to the mechanical power presses standard. OSHA is seeking information regarding whether it should update the mechanical power presses standard and, if so, how closely the standard should follow the current ANSI standard for mechanical power presses. It is also seeking information on the types of presses that should be covered, the use and certification of equipment, and other topics such as presence-sensing device initiation (PSDI) systems, and requirements for press modifications, training, and injury reporting. Please reference the Federal Register here.

Individuals may submit comments electronically at http://www.regulations.gov (Docket No. OSHA-2007-0003, which also includes documents referenced by OSHA in the RFI). Please refer to the Federal Register notice for additional details. The deadline for submitting comments is October 26, 2021.