October 2021 Government Affairs Update

DOL Submits Draft ETS on COVID-19 Vaccination Mandate for Regulatory Review

Last week, the Department of Labor (DOL) submitted a draft version of a federal Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing requirements to the Office of Management and Budget (OMB) for regulatory review. The text of the ETS will be reviewed by OMB and published in the Federal Register upon completion of the review. Once published, the ETS is expected to go into effect immediately. OMB is required by statute to review all Executive Branch regulations before final publication.

On Sept. 9, President Biden directed the Occupational Safety and Health Administration (OSHA) to develop an ETS to require employers with 100+ employees to ensure that all employees are vaccinated against COVID-19 or produce a negative test result on a weekly basis before coming to work.

At this time, the draft text of the ETS has not been made public. BSCAI continues to closely monitor the status of the ETS and will update members accordingly once the text of the ETS becomes available. 

For any questions, please contact BSCAI Director of Government Affairs Kevin McKenney at kmckenney@bscai.org.

Washington Update: State of Play on Infrastructure and Budget Reconciliation

The House of Representatives recently postponed a scheduled vote on the $1.2 trillion bipartisan Infrastructure Investment and Jobs Act, which passed the Senate in August. The vote was scuttled by progressive Democrats in the House who said they will not vote for the bipartisan infrastructure bill until Congress also advances President Biden’s $3.5 trillion budget reconciliation plan for social safety net programs, called the Build Back Better Act.

The progressive and moderate wings of the Democratic Party in Congress continue to be at odds over how to proceed on both pieces of legislation. While progressives are demanding that passage of the two bills be linked together, moderates are advocating for immediate passage of the infrastructure bill, separate from any vote on the reconciliation bill. Progressive Democrats are worried that they will lose leverage over moderate Democrats should the infrastructure bill pass Congress before the reconciliation bill. 

Democratic Senators Joe Manchin (D-WV) and Krysten Sinema (D-AZ) continue to express their concerns regarding their party’s attempts to push through the $3.5 trillion budget reconciliation plan. Senator Manchin has indicated he will oppose any reconciliation bill that goes above $1.5 trillion while Senator Sinema has voiced similar doubts about the price tag and proposed tax increases. Any budget reconciliation bill will need the approval of both senators before advancing out of Congress.

Democratic leadership has announced a new deadline of Oct. 31 for Congress to agree on a path forward for both pieces of legislation. Given the deep divide between the progressive and moderate factions of the Democratic Party over the substance and process, it remains to be seen whether they will be able to advance either bill by the end of the month.

Below you will find a brief summary of where things stand on infrastructure and budget reconciliation in Congress.

Infrastructure Investment and Jobs Act:

• Bipartisan infrastructure bill;
• Passed the Senate in August by a vote of 69-30;
• Has not received a vote in the House;
• $1.2 trillion for physical infrastructure investments, $550 billion of that is new spending;
• Reforms federal permitting rules and funds workforce development initiatives; and
• No new tax increases on individuals or businesses.

Build Back Better Act:

• Budget reconciliation plan being advanced by Democrats and opposed by Republicans;
• $3.5 trillion for social safety net programs related to climate change, education, housing, health care, child care and labor;
• Contains $2 trillion in new tax increases;
• House Democrats recently approved legislative text out of their committees. The bill has not received a vote on the House floor; and
• Senate Democrats have not advanced or released any legislative text on budget reconciliation to date.

HHS Guidance on HIPAA and COVID-19 Vaccinations in the Workplace

The Department of Health and Human Services (HHS) has released guidance on commonly asked questions regarding HIPAA (Health Insurance Portability and Accountability Act), COVID-19 vaccines and privacy rights in the workplace. 

HIPAA is a federal law that set national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge. The HHS guidance details the HIPAA rights of employers, workers and customers as it pertains to the disclosure of health information related to COVID-19 and vaccinations.

White House Announces Initiatives to Protect Workers from Extreme Heat

The Biden administration recently announced new initiatives at the Department of Labor (DOL) and other federal agencies to protect workers from extreme heat in both indoor and outdoor workplace settings. Specifically, the Occupational Safety and Health Administration (OSHA) is implementing an enforcement initiative on heat-related hazards, developing a National Emphasis Program on heat inspections and launching a rulemaking process to develop a workplace heat standard. OSHA is also forming an advisory committee to provide better understanding of challenges and to identify and share best practices to protect workers.

The new actions from the DOL will be aimed at protecting outdoor workers, including agricultural, construction, and delivery workers, as well as indoor workers, including those in warehouses, factories, and kitchens. Below you will find a summary of the White House’s announcement.

• Enforcement initiative on heat-related hazards: OSHA will be using existing tool to protect workers in hazardously hot indoor and outdoor settings. OSHA has announced a new enforcement initiative where they will prioritize heat-related interventions and workplace inspections on days when the heat index exceeds 80°F. On these days, OSHA Area Directors will dedicate additional resources in responding to heat-related complaints and expand the scope of programmed and unprogrammed inspections to address heat-related hazards. Employers will be encouraged to implement proactive interventions, such as water, rest, and shade, and other important prevention measures such as acclimatization of new or returning workers. Current guidance from OSHA on heat exposure can be found here.
• Workplace heat standard: OSHA has announced an Advance Notice of Proposed Rulemaking (ANPRM) on heat illness prevention in outdoor and indoor work settings. The ANPRM will be published in the Federal Register in October and will initiate a comment period allowing for OSHA to gather stakeholder perspectives and technical expertise on topics including heat stress thresholds, heat acclimatization planning and exposure monitoring. 
• National Emphasis Program: OSHA is formalizing a National Emphasis Program (NEP) on heat hazard cases, which will target high-risk industries and focus OSHA resources and staff time on heat inspections. OSHA is working to complete the NEP before the summer 2022 heat season.

BSCAI is closely monitoring these new initiatives by the Biden administration and will keep members informed on the latest developments.

Congress Passes Legislation to Avert Government Shutdown

Congress recently passed a short-term continuing resolution (CR) to fund the federal government at existing levels through Dec. 3, 2021. The CR included $28.6 billion for natural disaster relief and $6.3 billion for Afghan refugee resettlement. Congress also passed a short-term $480 billion increase in the nation’s debt ceiling which will allow federal borrowing to continue through at least Dec. 3, 2021.