Beltway Buzz, July 2, 2020

Spring Regulatory Agenda Released. Last week, the Buzz wondered when we might see the administration’s spring regulatory forecast. Well, the administration must have noticed our comment, because on June 30, 2020, it released its Spring 2020 Unified Agenda of Regulatory and Deregulatory Actions. Below are some of the highlights from the agenda and what stakeholders might expect in the regulatory arena for the next few months. As always, keep in mind that these timelines are aspirational and likely reflect agency timetables that may have been in place weeks or even months ago.

U.S. Department of Labor (DOL)

• Independent contractors. The Wage and Hour Division (WHD) was scheduled to publish a notice of proposed rulemaking (NPRM) in June 2020 “for determining independent contractor status under the Fair Labor Standards Act.”
• Federal contractors. In August 2020, the Office of Federal Contract Compliance Programs (OFCCP) is slated to finalize its regulations relating to religious exemptions, as well as its procedures to resolve potential employment discrimination.
• Personal protective equipment for construction. The Occupational Safety and Health Administration (OSHA) will issue an NPRM in August 2020, to clarify the requirements for the fit of personal protective equipment (PPE) in construction.
• Walking-working surfaces. An OSHA proposal to clarify the 2016 walking-working surfaces rule was expected to be released in June 2020.

Equal Employment Opportunity Commission (EEOC)

• An NPRM regarding the interaction between employer-sponsored wellness programs and the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act is scheduled to be released in July 2020.
• Joint employer. By July 2020, the EEOC will issue proposed regulations and guidance on what it means to be a joint employer under federal employment discrimination laws.
• Conciliation. An NPRM to “revise existing regulations to enhance the effectiveness of the conciliation process and provide greater clarity for all stakeholders” is slated to issue in July 2020.

National Labor Relations Board (NLRB)

• Representation case rules. The NLRB was scheduled to issue two separate NPRMs in June 2020, relating to the Board’s representation procedures.
• Access rule. In June 2020, the Board was scheduled to issue a proposal “to establish the standards under the National Labor Relations Act [NLRA] for access to an employer’s private property.”
• Student/employee status. In September 2020, the Board is slated to issue a final rule “to establish the standard for determining whether students who perform services at a private college or university in connection with their studies are ‘employees’” under the NLRA.

Department of Homeland Security—U.S. Citizenship and Immigration Services (USCIS)

• H-1B reform. In December 2020, USCIS is expected to issue a proposal to revise the definitions of “specialty occupation,” “employment,” and “employer-employee relationship,” as well as make additional changes “designed to ensure employers pay appropriate wages to H-1B visa holders.”
• H-4 EAD. USCIS is forecasting that it will issue a proposal in September 2020, to “remove from its regulations” “certain H-4 dependent spouses of H-1B nonimmigrant workers” as a “class of aliens for eligibility for employment authorization.”

NLRB to Examine Contract Bar. In an order issued last week, the National Labor Relations Board said that it will review its “contract bar” doctrine, which prohibits representation elections during the life of a collective bargaining agreement for up to three years. According to the NLRB’s “Outline of Law and Procedure in Representation Cases,” the contract bar is “intended to afford the contracting parties and the employees a reasonable period of stability in their relationship without interruption and at the same time to afford the employees the opportunity, at reasonable times, to change or eliminate their bargaining representative.” The employee in the instant case argues that the contract bar—which is not based on the text of the NLRA (unlike the one-year election bar) but is a creature of NLRB jurisprudence—unnecessarily stifles employee free choice. The Board is expected to solicit stakeholder feedback on the matter.

DOL Opines on Leave for Canceled Summer Camps. As we progress into summer, workers with children whose summer camps have been canceled due to the pandemic are undoubtedly scrambling to figure out their childcare options. The Families First Coronavirus Response Act (FFCRA) may provide at least some relief in these situations, as its paid leave provisions cover situations in which covered employees are unable to work or telework because they have to care for a child whose “place of care” (which includes summer camps or similar programs) is closed for COVID-19-related reasons. In a Field Assistance Bulletin (FAB) issued late last week, the WHD explained what type of employee-provided information is sufficient to satisfy the documentation provisions of the statute. Pursuant to the FAB, besides evidence of enrollment in the camp, prior attendance at the camp, payment of a deposit, or placement on the waitlist may also be sufficient indicators that the camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons.

OFCCP Issues TRICARE Regulation. On July 1, 2020, OFCCP finalized its long-awaited TRICARE regulation. The regulation provides that OFCCP does not have jurisdiction over health care providers that participate in TRICARE. It alternatively gives such providers a national interest exemption from OFCCP obligations and requirements. Providers with additional separate federal contracts will still remain subject to OFCCP jurisdiction. The regulation goes into effect on August 31, 2020.

USMCA Begins. On June 30, 2020, the not-so-cleverly-named United States-Mexico-Canada Agreement (USMCA) on trade went into effect. Stephen Shore and Pietro Straulino-Rodriguez have the details on what this means for employers here.

Paycheck Protection Program (PPP) Expires. On July 1, 2020, President Trump signed legislation extending the PPP to August 8, 2020, (the program expired on June 30, 2020). There is $130 billion in the fund that is left unspent.

July 4 PSA. As a public service announcement (PSA) to our readers, you may want to reconsider those disposable plates or napkins decorated with the U.S. flag that you’ve purchased for your July 4 cookout. Pursuant to federal law, the flag “should not be … printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard.” Thankfully, this language is only suggested etiquette and not legally enforceable.