IHMM Today January 10, 2023

Beltway Buzz – Ogletree Deakins

The 118th Congress Is Here. Sort of. As required by the U.S. Constitution, the 118th Congress gaveled in on January 3, 2023. If there was any hope that a new year would bring new competence and cooperation within the U.S. Congress, that hope ended quickly, as the election for Speaker of the U.S. House of Representatives abruptly spiraled into an intraparty imbroglio for House Republicans. As of this writing, there is no Speaker of the House, which means that members of the House haven’t been sworn in and the House of Representatives is unable to conduct business. Assuming a Speaker will soon be elected, here is a glimpse of what the Buzz will be watching for in Congress in 2023:

• Chairman Bernie. In the U.S. Senate, Vermont Senator Bernie Sanders is in line to grab the gavel for the U.S. Senate Committee on Health, Education, Labor and Pensions. Expect him to focus on healthcare, union organizing, and workplace safety (particularly in the warehouse, transportation, and logistics industries).
• Republican Investigations. In the House, Republicans are likely to use their oversight authority to shine light on the regulatory agendas of agencies such as the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB). These two agencies in particular will be the subjects of multiple information requests, congressional inquiries, and hearings.
• Legislative Gridlock. A divided Congress—with a slim and embattled Republican majority in the House—likely means that our representatives will struggle to pass even the most innocuous legislation, much less major legislative vehicles such as immigration reform or the Protecting the Right to Organize (PRO) Act. This also signals the end (for the next two years) of large reconciliation-driven packages such as the American Rescue Plan Act and the Inflation Reduction Act.

2023 Omnibus Catch-up. Before diving into predictions for 2023, a quick review of the last two weeks is warranted. Our legislators are motivated by deadlines, and the end of the calendar year, the end of the 117th Congress, and a potential government shutdown all combined to push Congress to pass a $1.7 trillion omnibus spending package that included multiple provisions that will impact the workplace. Below is a brief description of the labor and employment policy provisions enacted in H.R. 2617, the “Consolidated Appropriations Act, 2023,” which will fund the federal government through September 2023.

• Pregnant Workers Fairness Act. For a while, prospects of passage of the Pregnant Workers Fairness Act (PWFA) looked bleak, but the bill eventually passed as an amendment to the omnibus. The Buzz has been tracking the PWFA for some time. The new legislation, which will be enforced by the U.S. Equal Employment Opportunity Commission (EEOC), requires employers to provide reasonable accommodation—such as more frequent bathroom breaks or an easing of lifting requirements—to pregnant workers.
• PUMP Act. The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act passed the House of Representatives in October 2021 by a vote of 276–149, with fifty-nine Republicans voting for passage. The bill then sat on Senator Charles Schumer’s desk until the end of December 2022 when the political winds blew favorably and the bill was included—like the PWFA—as an amendment to the omnibus. The new law extends current protections for nursing workers to salaried employees and includes an enforcement mechanism.
• Retirement. Also included in the omnibus package were a handful of retirement-related bills referred to as SECURE 2.0, which aim to encourage individuals’ retirement savings by, among other things, increasing the minimum distribution age and requiring automatic enrollment in retirement plans.
• Immigration Provisions. Although the Equal Access to Green Cards for Legal Employment (EAGLE) Act of 2022 did not make it across the finish line, the omnibus included several immigration-related provisions. The legislation extended the E-Verify program, the special program for nonministerial religious workers, and the Conrad 30 waiver program for doctors practicing in underserved areas. The legislation also authorized the U.S. Department of Homeland Security and the DOL to provide additional H-2B visas beyond the statutory limitation.
• Agency Funding. Of course, the funding bill also accomplished what it was primarily intended to do: fund federal agencies. Here is how the relevant workplace agencies fared:
• • For the first time since 2014, the NLRB received increased funding. The Board will add an additional $25 million to its bottom line, bringing its budget to just a bit over $299 million. Importantly, the prohibition on electronic voting remains.
  • The EEOC received a $35 million increase to $455 million. The explanatory statement accompanying the bill directed the EEOC to report to Congress within thirty days of the bill’s enactment “on the actions the Commission intends to take in response to the data and recommendations” contained in the National Academies of Sciences, Engineering, and Medicine report on the EEOC’s flawed pay data collection. The statement also encouraged the EEOC to resuscitate the National Equal Pay Enforcement Task Force.
  • The DOL’s Wage and Hour Division received a $9 million increase to $260 million.
  • The Occupational Safety and Health Administration (OSHA) received a $20 million increase to a little over $632 million.

FTC Proposes Ban on Noncompete Agreements. Christine Bestor Townsend, Tobias E. Schlueter, and Collin K. Brodrick have everything you need to know about the Federal Trade Commission’s (FTC) notice of proposed rulemaking to ban the use of noncompete agreements. While the timing of the proposal was a surprise (it never appeared on any of the three previous regulatory agendas released since the Biden administration came into office), the regulated community knew that something was coming. On the campaign trail, then-candidate Joe Biden promised to “eliminate all noncompete agreements.” President Biden took steps to follow through with this promise by installing Lina Khan as chair of the FTC and issuing the highly controversial antitrust executive order. As the Buzz has documented, there is also the memorandum of understanding between the NLRB and the FTC that specifically targets noncompetes, as well as the U.S. Department of the Treasury’s report on alleged uncompetitive practices. A lot of political capital is behind FTC’s effort this week. The U.S. Chamber of Commerce has already blasted the proposal as “blatantly unlawful.”

Fall 2022 Regulatory Agenda Finally Unveiled. The administration released its Fall 2022 regulatory agenda … on January 4, 2023. Here is what the regulatory roadmap looks like for the DOL:

• Wage and Hour Division
  • Overtime. A proposal to amend the Fair Labor Standards Act’s (FLSA) overtime regulations is scheduled for May 2023.
  • Independent Contractor. Comments on the proposal to amend the FLSA independent contractor regulations closed on December 13, 2022. A final rule is expected to be issued in May 2023.
  • Davis-Bacon Act. A final rule amending the Davis-Bacon Act’s implementing regulations is slated for February 2023.

• OSHA
  • “Walkaround Representative.” This proposal, which is scheduled to issue in May of 2023, would codify OSHA’s controversial 2013 “walkaround” letter.
  • COVID-19 in Healthcare Settings. The Office of Information and Regulatory Affairs completed its review of the final rule. A final rule was scheduled to be issued in December 2022, so it can happen at any point now. (John D. Surma and Savannah M. Selvaggio have the details.)
  • Injury and Illness Recordkeeping. A final rule is expected in March 2023.
  • Heat Stress and Illness. The Small Business Regulatory Enforcement Fairness Act (SBREFA) process is scheduled to begin in January 2023.
  • Workplace Violence in Health Care and Social Assistance. A SBREFA panel was scheduled to begin in late December 2022 or early this year.

• OFCCP
  • Modernization. In April 2023, the Office of Federal Contract Compliance Programs (OFCCP) intends to issue a proposal to “modernize” its obligations for federal contractors and subcontractors.
  • Pre-enforcement Notice and Conciliation Procedures. In March 2023, OFCCP is expected to finalize a rule amending its procedures for conducting investigations of federal contractors and subcontractors.
  • Subcontractor Disclosure. In March 2023, OFCCP is expected to issue a proposal “requiring contractors to provide notice to OFCCP when they award supply and service subcontracts.” The purpose of the proposal is to make it easier for “the agency to schedule supply and service subcontractors for compliance evaluations.”
  • Religious Exemption Rule. More than one year in the making, a final rule rescinding OFCCP’s 2020 rule regarding the religious exemption contained in Executive Order 11246 was scheduled to be issued in December 2022.

Employment-Based Immigration Fees to Skyrocket. On January 4, 2023, U.S. Citizenship and Immigration Services (USCIS) proposed changes to its fee schedule. Based on the proposal, it appears that USCIS is trying to make up for funding shortages that have plagued the agency over recent years. Some of the proposed employment based increases include the following:

• H-1B petitions would increase from $460 to $780 (a 70 percent increase).
• H-1B Pre-Registration program fee would increase from $10 to $215 (a 2,050 percent increase).
• L-1 petitions would rise from $460 to $1,385 (a 201 percent increase).
• O-1 petitions would increase from $460 to $1,055 (a 129 percent increase).

According to the proposal, the increases are necessary “due to expanded humanitarian programs, higher demand, increased processing times, and a need for more USCIS employees.” Of course, increasing the fees is unlikely to resolve ongoing processing delays at USCIS. Comments are due by March 6, 2023.

PHMSA – Rulemakings and Regulatory News

Safety Device Classification

On October 13, PHMSA published the notice “Hazardous Materials: Safety Device Classification Policy,” to the Federal Register. This Notice details what PHMSA will consider when reviewing an approval application to use the shipping description “UN3268, Safety devices, electrically initiated, 9,” and establishes a policy for classifying subcomponents of existing safety devices as safety devices in their own right.  In addition, the policy states that PHMSA will balance the potential safety benefits to persons in vehicles, vessels or aircraft with the potential danger posed by shipping explosive materials that are not incorporated in a larger component device.

Link: https://www.federalregister.gov/documents/2022/10/13/2022-22200/hazardous-materials-safety-device-classification-policy?utm_source=federalregister.gov&utm_medium=email&utm_campaign=subscription+mailing+list

HM-260B “Editorial Corrections and Clarifications”

On December 27, PHMSA published the Final Rule HM-260B, “Editorial Corrections and Clarifications,” which amends the Hazardous Materials Regulations (HMR; 49 Code of Federal Regulations (CFR) parts 171-180) to correct typographical errors and supply information or language that had been inadvertently omitted. Changes include fixing incorrect regulatory references and citations, addressing misstatements of certain regulatory requirements, as well as removing obsolete references to regulatory provisions, dates, and outdated concepts (such as other regulated materials-domestic (ORM-D)).

Link: https://www.federalregister.gov/documents/2022/12/27/2022-26960/hazardous-materials-editorial-corrections-and-clarifications?utm_source=federalregister.gov&utm_medium=email&utm_campaign=subscription+mailing+list

Enhanced Safety Provisions for Lithium Batteries Transported by Aircraft (FAA Reauthorization Act of 2018)

On December 21, PHMSA published the Final Rule “Hazardous Materials: Enhanced Safety Provisions for Lithium Batteries Transported by Aircraft (FAA Reauthorization Act of 2018),” which revises HMR requirements for lithium cells and batteries transported by aircraft. This follows the previous Interim Final Rule, published in March 2019, which responded to congressional mandates, prohibited the transport of lithium ion cells and batteries as cargo on passenger aircraft, required lithium ion cells and batteries to be shipped at not more than a 30 percent state of charge aboard cargo-only aircraft when not packed with or contained in equipment, and limited the use of alternative provisions for smaller lithium cell or battery shipments to one package per consignment.

In response to subsequent comments, this final rule provides editorial amendments and modification of certain provisions, including marking requirements, requests for an extension on the compliance date, and exception for lithium cells or batteries used for medical devices with approval by the Associate Administrator.

Link: https://www.federalregister.gov/documents/2022/12/21/2022-27563/hazardous-materials-enhanced-safety-provisions-for-lithium-batteries-transported-by-aircraft-faa?utm_source=federalregister.gov&utm_medium=email&utm_campaign=subscription+mailing+list

Frequently Asked Questions ( on the Applicability of the Hazardous Materials Regulations

In March 2022, PHMSA announced an initiative to publish frequently asked questions (FAQ) on its website to facilitate better public understanding and awareness of the HMR. The FAQ contained in this repository were informed by historical letters of interpretation and are meant to resolve recurring requests for common letters of interpretation.

This final notice, issued December 9, 2022, finalizes answers to the first set of twelve FAQs in response to stakeholder comments, and announces the topic for the next set of FAQs, pertaining to incident reporting requirements.

The initial notice requested comment on the initiative, and sought stakeholder input on the prioritization of future sets of FAQs. To encourage greater engagement, the comment period was extended an additional 60 days, until July 22, 2022. PHMSA also held a webinar to clarify the process and offer direct Q&A.

Link: https://www.federalregister.gov/documents/2022/12/09/2022-26808/hazardous-materials-frequently-asked-questions-applicability-of-the-hazardous-material-regulations?utm_medium=email&utm_campaign=subscription+mailing+list&utm_source=federalregister.gov

IHMM CONFERENCES FOR 2023

IHMM will attend and support a number of conferences and trade shows throughout 2023, virtually as well as in-person as resources allow. Below are some of the conferences IHMM will support in 2023.

Are there conferences you believe IHMM should attend that do not appear here? If so, let us know by sending an email to [email protected]

ASSP Greater San Jose and San Francisco Chapters Safety Symposium

San Ramon Marriott – Thank you Bart Miller for leading this effort

March 9, 2023

Ohio Safety Congress and Expo

Greater Columbus Convention Center

March 8-10, 2023

COSTHA Annual Forum and Expo

Embassy Suites by Hilton Dallas-Frisco Hotel & Convention Center

March 24-April 30, 2023

AIHce EXP 2023

Phoenix Convention Center

May 22-24, 2023

ASSP Safety Conference and Exposition

San Antonio, TX

June 5-7, 2023

National Safety Council Congress & Expo

New Orleans, LA

October 23-25, 2023