IHMM Today July 5, 2022

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Beltway Buzz – Ogletree & Deakins

NLRB GC Provides Update on Recent Remedies. Remember back in September 2021 when the Buzz reported on National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo’s memorandum instructing regional directors to “request from the Board the full panoply of remedies available” in unfair labor practice cases? Well, late last week, General Counsel Abruzzo issued an update on the matter, writing in a memo that “[r]egions have done an excellent job implementing the settlement approach.” The latest memo further notes that “[r]egions have secured compensation for derivative economic harm, including reimbursing fees for late car loan payments and late rent, payment of monthly interest on the loan a discriminatee took out to cover living expenses, the cost of baby formula due to the loss of a workplace breast pumping station, and the cost of a retrofitting a discriminatee’s car to make it usable in a new job.” The memo touts other examples of recent settlement terms, including “[l]etters of apology to reinstated employees” and “[p]ermitting union use of employer bulletin boards.”

Term Ends for Former EEOC Chair. July 1, 2022, marks the expiration of Republican commissioner Janet Dhillon’s term on the U.S. Equal Employment Opportunity Commission (EEOC). (Provisions of Title VII of the Civil Rights Act of 1964 allow Dhillon to continue to serve until her successor is appointed or the current U.S. Congress adjourns.) Commissioner Dhillon served as chair of the Commission from May 15, 2019, to January 20, 2021. Among her accomplishments as chair, Dhillon led the Commission in issuing important guidance at various points during the COVID-19 pandemic, issued the Commission’s first rule establishing transparent guideposts during the conciliation process (this was subsequently rescinded by Congress), and returned much of the EEOC’s litigation authority to the commissioners themselves.

OSHA: Get the Lead Out. On June 28, 2022, the Occupational Safety and Health Administration (OSHA) issued an advance notice of proposed rulemaking (ANPRM) to revise its standards for lead exposure in the workplace. According to the announcement, OSHA “seeks public input on modifying current OSHA lead standards for general industry and construction to reduce the triggers for medical removal protection and medical surveillance and prevent harmful health effects in workers exposed to lead more effectively.” The notice also solicits feedback on the permissible exposure limit as well as “[a]ncillary provisions for personal protective equipment, housekeeping, hygiene and training.” Comments are due on or before August 29, 2022.

MA Workplace Safety Plan on the Way. On June 30, 2022, OSHA issued a proposal to approve the Massachusetts Department of Labor Standards’ (DLS) submission of a state plan for occupational safety and health. According to OSHA, the DLS has “provided assurances that it will adopt such standards, policy changes, or requirements that are at least as effective as Federal OSHA’s within six months of Federal promulgation (30 days for any emergency temporary standard).” Comments are due by August 1, 2022.

USCIS Proposed Fee Schedule Advances. This week, a proposal to adjust fees for certain immigration benefits requests took a step closer to being made public. On June 27, the Office of Information and Regulatory affairs received the draft amended fee schedule proposal from U.S. Citizenship and Immigration Services (USCIS). The most recent attempt to amend the fee schedule was blocked by a federal court in 2020. The forthcoming proposal “would rescind and replace the changes made by the August 3, 2020, rule and establish new USCIS fees to recover USCIS operating costs.”

Jackson Joins as Breyer Retires. On June 30, 2022, Associate Justice Stephen Breyer officially retired from active service on the Supreme Court of the United States. In a letter to President Biden, Breyer wrote, “It has been my great honor to participate as a judge in the effort to maintain our Constitution and the Rule of Law.” At noon on the same day, immediately after Breyer’s retirement became effective, Judge Kentanji Brown Jackson was sworn in (by Chief Justice John Roberts and Associate Justice Breyer) as the 104th associate justice of the Supreme Court.

Frequently Asked Questions (FAQ) on the Applicability of the Hazardous Material Regulations

In March of 2022, PHMSA announced an initiative to publish frequently asked questions (FAQ) on its website to facilitate better public understanding and awareness of the hazardous materials regulations. The FAQ contained in this repository were informed by historical letters of interpretation (LOI) and are meant to resolve recurring requests for common letters of interpretation. The initial Federal Register notice included answers to a list of twelve frequently-asked questions, to be published to PHMSA’s Online Code of Federal Regulations (oCFR) tool.

In addition, the initial notice requested comment on the initiative, and sought stakeholder input on the prioritization of future sets of frequently asked questions. 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 (recording available at the link below).

Link to Federal Register posting: https://www.federalregister.gov/documents/2022/03/22/2022-05958/hazardous-materials-frequently-asked-questions-applicability-of-the-hazardous-material-regulations

Link to webinar: https://www.youtube.com/watch?v=R1fCnNRK2d0

Transporting Lithium Batteries Webpage

PHMSA’s “Transporting Lithium Batteries” webpage consolidates lithium battery resources, as well as information on the latest requirements and actions related to lithium batteries in transportation. The page includes links to electronic resources from a wide range of federal and modal partners, including the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), the Federal Aviation Administration (FAA), and the United States Postal Service (USPS).

Link: https://www.phmsa.dot.gov/lithiumbatteries

SPOTLIGHT: Safety Advisory Notice for the Transportation of Lithium Batteries for Disposal or Recycling

Are you involved in the transportation or handling of lithium batteries at end-of-life? PHMSA has issued the Safety Advisory Notice for the Transportation of Lithium Batteries for Disposal or Recycling for those who transport, dispose of, or recycle lithium batteries and products containing lithium batteries. The notice aims to increase awareness for the public and shippers about the often unrecognized dangers posed by lithium batteries in transportation, especially those for disposal or recycling.

The notice can be viewed in its entirety at: https://www.phmsa.dot.gov/training/hazmat/safety-advisory-notice-transportation-lithium-batteries-disposal-or-recycling

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