What's on the spring 2019 regulatory agenda?

It's spring, and a young person's fancy turns to . . .

via GIPHY

. . . why, the federal regulatory agenda! What else?

Here are the items that I think will be of most interest to our readers.

FROM THE DEPARTMENT OF LABOR . . .

Occupational Safety and Health Administration

Post-incident drug testing and safety incentive programs. OSHA intends to issue a proposed rule authorizing employers to conduct post-incident drug tests and to offer safety incentive programs. This would formalize directions given to Regional Administrators last fall. EXPECTED: September 2020. 

Office of Federal Contract Compliance Programs

Proposed rule on affirmative action obligations for TRICARE and "certain other healthcare providers." According to the notice, "This proposed regulatory action would include limiting and otherwise altering the obligations of TRICARE and other healthcare providers" that are subject to Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. EXPECTED: Imminently.

Religious organizations. The OFCCP says it will issue a proposed "update [to] its regulations to comply with current law regarding protections for religion-exercising organizations." EXPECTED: June 2019.

Resolution of discrimination issues. The OFCCP plans to issue proposed regulations addressing the procedures and documents used when federal contractors subject to E.O. 11246, the Rehabilitation Act, and VEVRAA are found to be in potential violation. "The proposed regulatory action would increase clarity and certainty for OFCCP stakeholders, and enhance the agency's efficiency in remedying employment discrimination." EXPECTED: September 2019.

Wage and Hour

The Wage and Hour Division of the DOL has already issued proposed regulations on the white-collar exemptions to the overtime requirements of the Fair Labor Standards Act, what is a "joint employer" for FLSA purposes, and the regular rate for purposes of computing overtime.

Tipped employees. Wage and Hour intends to issue new proposed regulations regarding tipped employees. The proposed regulations would bring 2011 regulations into conformance with legislative action taken by Congress in 2018, and will address "an employer's ability to take a tip credit to satisfy minimum wage obligations for time spent by a tipped employee performing duties that are related to the employee's tipped occupation," presumably consistent with an Opinion Letter issued in November 2018. EXPECTED: December 2019.

Family and Medical Leave Act. Wage and Hour also intends to issue a "Request for Information" asking for suggestions from the public on how to improve its existing regulations to "(a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers." EXPECTED: April 2020.

FROM THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION . . .

Wellness rules delayed again! I have covered extensively the EEOC's regulations, issued during the Obama Administration, concerning employer incentives for individuals to participate in wellness programs. The AARP sued the EEOC, contending that the regulations did not do enough to protect individual rights under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. A federal judge in the District of Columbia struck down the rules and ordered the EEOC to issue new rules by January 1, 2019. Meanwhile, of course, the EEOC lost its quorum and couldn't get a new rule put together in time, so the EEOC just went ahead and rescinded the regulations in late December. In its Fall 2018 regulatory agenda, the EEOC said that it did expect to issue new proposed regulations by June, but now it says we will have to wait until December. Sigh. Oh, well. At least the EEOC has its quorum back. EXPECTED: December 2019.

FROM THE NATIONAL LABOR RELATIONS BOARD . . .

Access to employer's property. The NLRB plans to issue proposed regulations "to establish the standards under the National Labor Relations Act for access to an employer's private property." EXPECTED: September 2019.

Student/employees. The NLRB also plans to issue proposed regulations relating to whether a student who performs services for a private college or university "in connection with their studies" is an "employee" for NLRA purposes. EXPECTED: September 2019.

Joint employers, "quickie" elections. The Board also intends to issue proposed regulations on joint employment under the NLRA and representation case procedures, but with no expected time frame.

WANT TO KNOW MORE?

Here is a link to Regulations.gov, which is your portal to the full Spring 2019 regulatory agenda. Unfortunately, it doesn't let me link directly to any specific agenda item. But to see the agenda, go to "Resources" at the top right of the screen, and select "Regulatory Agenda." That will take you to the "Regulatory Agenda" page (I can't link you directly to that, either) and a box that has a list of every U.S. governmental agency. You can scroll through the list and select the agency that interests you, click "Go>>" at the right of the box, and you'll be taken to the list of items for that particular agency. Just remember that OSHA, the OFCCP, and Wage and Hour are all listed under "Department of Labor."

It's almost like they wanted to make it hard for you to find these agenda items. Naw. Couldn't be.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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