DOL's Regulatory Agenda Shows Heavy Focus on Workplace Safety

In the next year, the Department of Labor (DOL) intends to issue 35 proposed rules and 25 final rules, consider drafting 13 new rules, and initiate 8 long-term actions. As outlined in the agency’s Semiannual Regulatory Agenda, nearly half of such regulatory activities will be undertaken by the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA). The sheer volume of possible regulatory activity is in keeping with the DOL’s renewed focus on rulemaking and enforcement. A complete list of the agency’s Fall 2010 Rule List can be found here. Highlights of the DOL’s intended regulatory activity include the following:

Health and Safety

  • OSHA is developing a rule requiring employers to implement an Injury and Illness Prevention Program. The rule would include planning, implementing, evaluating and improving processes and activities that protect employee safety and health. Stakeholder meetings on the initiative have already begun.
  • OSHA will consider drafting rules on occupational exposure to beryllium, food flavorings containing diacetyl and diacetyl substitutes, blood borne pathogens, and infectious diseases.
  • At the proposed rule stage, OSHA plans to issue proposed rules governing the occupational exposure to crystalline silica. This proposed rule is scheduled to be issued by April 2011. OSHA is also drafting a proposed rule on combustible dust, but no Notice of Proposed Rule Making (NPRM) release date has been set. Other regulations at the proposed rule stage include those governing walking working surfaces and personal fall protection systems, and occupational injury and illness recording and reporting requirements.
  • As for final rules, OSHA intends to issue a final rule on confined spaces in construction by November 2011.
  • With respect to work-related musculoskeletal disorders, by February 2011 OSHA claims it will issue a final rule amending the occupational injury and illness recording and reporting requirements to include a Musculoskeletal Disorders (MSD) Column on the 300 Log. 
  • By May 2011, OSHA plans to issue a final rule on electric power transmission and distribution, and electrical protective equipment.
  • As for the whistleblower provisions of many of the statutes OSHA enforces, including the employee protection provisions of the Consumer Financial Protection Act of 2010, Section 1057 of the Dodd-Frank-Wall Street Reform and Consumer Protection Act, the Affordable Care Act, and the Consumer Product Safety Improvement Act, the agency plans to issue interim final regulations on these provisions by September 2011.

Employee Benefits

Next to workplace safety initiatives, the next largest percentage of rulemaking activity will focus on employee benefits. After issuing six final rules in the past six months, the Employee Benefits Security Administration (EBSA) lists 19 separate regulatory actions it plans to take in the coming months. Some of these regulations include the following:

  • The EBSA intends to issue proposed rules addressing such issues as annual funding notices, pension benefit statements, the definition of “fiduciary”, improved fee disclosure for welfare plans, target date disclosures, and amendments to claims procedures.
  • By April 2011, the EBSA plans to issue its final rule on improved fee disclosure for pension plans.
  • A final rule addressing the statutory exemption for the provision of investment advice is scheduled to be issued by May 2011. 
  • EBSA will also begin rulemaking to implement the automatic enrollment provision of the Patient Protection and Affordable Care Act (“Affordable Care Act’), which applies to employers with more the 200 full-time employees and who over enroll in one or more health benefit plans. The Agency plans to issue a request for information by May 2011. The Agency will also continue its development of other rulemaking activities under the Affordable Care Act.

Wage and Hour

  • The DOL’s Wage and Hour Division (WHD) plans to issue regulations implementing the Family and Medical Leave Act (FMLA) to incorporate amendments made by the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act. A NPRM is slated to be issued by February 2011.
  • By April 2011, the WHD plans to issue a NPRM to update the recordkeeping regulations under the Fair Labor Standards Act (FLSA) in order to “enhance the transparency and disclosure to workers of their status as the employer's employee or some other status, such as an independent contractor, and if an employee, how their pay is computed.” Proposed rules were originally expected before the end of this year.
  • The WHD also plans to clarify that the mandatory manual preparation of "homeworker" handbooks applies only to employers of employees performing homework in the restricted industries.
  • The WHD also plans to issue by October 2011 a proposed rule that would apply the FLSA to domestic service workers.
  • By March 2011, the WHD intends to issue a final rule implementing Executive Order 13495 – Nondisplacement of Qualified Workers Under Service Contracts – which establishes the policy that federal service contracts generally include a clause requiring the contractor and its subcontractors, under a contract that succeeds a contract for the same or similar service at the same location, to offer qualified employees (except managerial and supervisory personnel) employed on the predecessor contract a right of first refusal to employment under the successor contract.

Office of Labor Management Standards

  • The OLMS is actively considering drafting a rule that would allow internet balloting in union officer elections.
  • By June 2011, the OLMS plans to issue a proposed rule that would revise the interpretation of section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). That statutory provision creates an "advice" exemption from reporting requirements that apply to employers and other persons in connection with persuading employees about the right to organize and bargain collectively. A proposed revised interpretation would narrow the scope of the advice exemption.

Office of Federal Contract Compliance Programs

  • The OFCCP will soon issue a proposed rule with request for comments on its plan to revise regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). This NPRM would strengthen the affirmative action requirements for federal contractors and subcontractors. According to the OFCCP, the NPRM would amend the regulations to require that federal contractors and subcontractors conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts. The NPRM would also make revisions to recordkeeping requirements.
  • By July 2011 the OFCCP also intends to issue a NPRM to revise the regulations in 41 CFR part 60-4 implementing the affirmative action requirements of Executive Order 11246 that are applicable to federal and federally assisted construction contractors. According to the agency, the proposed rule would “strengthen and enhance the effectiveness of the affirmative action program requirements for Federal and federally-assisted construction contractors and subcontractors, particularly in the area of recruitment and job training.”
  • In another proposed rule dealing with affirmative action, the OFCCP plans to issue a NPRM that “would strengthen the affirmative action requirements for Federal contractors and subcontractors. The NPRM would amend the regulations to require that Federal contractors and subcontractors increase linkages and conduct more substantive analyses of recruitment and placement actions taken under section 503. The NPRM would also make revisions to recordkeeping requirements.”

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.