June 30, 2020

Regulatory Reform Rains and Reigns – What’s on the Horizon

On July 29th, the National Labor Relations Board published a Notice of Public Rulemaking (NPRM) proposing to “eliminate the requirement that employers provide available personal email addresses and home and personal cellular telephone numbers of all eligible voters to the Regional Director and other parties during [a union] election campaign. The Board believes, subject to comments, that elimination of this requirement will advance important employee privacy interests that the current rules do not sufficiently protect.” This notice and comment period ends September 28, 2020.

On June 30th the U.S. Office of Information and Regulatory Affairs published its Spring 2020 Unified Agenda of Regulatory and Deregulatory Actions. It provides a listing of anticipated regulatory actions planned by 66 federal agencies in the next six months. Some employment-related highlights are below.

EEOC (13 Rules)
ADA, GINA and Wellness Programs – Both rules propose to amend the regulations to implement the equal employment provisions of the Americans with Disabilities Act (ADA) and Genetic Information Non-Discrimination Act (GINA) to address the interaction between title I of the ADA and wellness programs, which had been published as a final rule on May 17, 2016 and completed in the fall 2016 agenda. On August 22, 2017, the U.S. District Court for the District of Columbia ordered the Equal Employment Opportunity Commission (EEOC) to reconsider its May 17, 2016, final rule on employer-sponsored wellness plans under the ADA. In accordance with the court’s ruling, the EEOC rescinded portions of its ADA wellness rule on December 20, 2018. EEOC staff are now developing a Notice of Proposed Rule Making (NPRM) to address wellness programs under the ADA in response to the court’s ruling. It is anticipated that the proposed rule will reduce the previous, permissible percentage for incentives to participate in employers’ wellness programs from 30% to a lesser, de minimis amount.

Joint Employer- The proposed guidelines explain how the EEOC analyzes the common law agency standard for determining whether an entity and a worker are in an employment relationship and whether two entities are joint employers for purposes of the federal EEO laws, as well as under the Equal Pay Act.

Pay Data Collection & Reporting – The EEOC is considering initiating a rule that may include a new reporting requirement by which employers would submit pay data or related information as reasonable, necessary, or appropriate for the enforcement of title VII of the Civil Rights Act of 1964 and the Equal Pay Act. The EEOC would seek public comment regarding the potential benefits to its enforcement of anti-discrimination laws, appropriate methods of collecting pay data, and burdens on respondents to collect and report pay data or related information under proposed alternatives as well as other alternatives suggested by commenters.

Department of Labor (70 Rules)
• The Department of Labor is proposing a regulation for determining independent contractor status under the Fair Labor Standards Act.
• Tip regulations final rule is expected in November
• Fluctuating Workweek rule takes effect August 7th

FMLA & Paid Leave Programs – The Department has published this Request for Information (RFI) that solicits comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers. The Department has published another RIF to gather information concerning the effectiveness of current state- and employer-provided paid leave programs, and how access or lack of access to paid leave programs impacts America’s workers and their families. Join FiveL’s August 26th Webcast, “FMLA Update 2.0” for more information and advocacy tips! (Pre-approved by HRCI for 1.25 business credits)

DOL/OSHA – Drug Testing Program and Safety Incentive Rule – OSHA clarified, through a memorandum to the field, the agency’s position that federal regulations do not prohibit post-incident drug testing or safety incentive programs. The agency would propose memorializing OSHA’s position on these issues through regulatory changes related to implementation of post-incident drug testing and safety incentive programs.
Prevention of Workplace Violence in Health Care and Social Assistance – Small Business Regulatory Enforcement Fairness Act (SBREF) Small Business Advocacy Review panels may be formed in December 2020.

Affirmative Action –
• This Notice of Proposed Rulemaking would revise regulations to clarify how federal contractors and subcontractors may organize their employee affirmative action program under Executive Order 11246 (as amended), section 503 of the Rehabilitation Act (as amended), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (as amended). The NPRM would also codify a voluntary program currently authorized by the Office of Management and Budget that allows federal contractors and subcontractors to organize affirmative action programs by functional or business units.
• The Department will seek to update its regulations to comply with current law regarding protections for religion-exercising organizations.
• This Final Rule would revise regulations that implement the nondiscrimination and affirmative action provisions of Executive Order 11246 (as amended), section 503 of the Rehabilitation Act (as amended), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (as amended), respectively, to codify certain procedures and documents OFCCP uses to resolve potential violations of these laws by federal contractors and subcontractors.