On December 21, 2012, federal agencies released their long-awaited unified agendas and regulatory plans for 2012. Agencies ordinarily release unified agendas in the spring and fall of each year. These agendas outline the regulatory actions that the agencies will likely propose or issue in final form during the upcoming fiscal year. With their fall unified agendas, agencies publish their regulatory plans as well, which identify their regulatory priorities and describe the most important significant regulatory actions that they intend to take in the coming months. For 2012, agencies likely held off on releasing details about their regulatory priorities so as not to stir up controversy during an election year. As a result, many of the target dates for rulemaking goals are outdated. The items listed in the 2012 unified agendas and regulatory priorities can, however, be used as indicia of the issues agencies intend to tackle in 2013. The following highlights some of these priorities by agency:
Department of Labor (DOL)
As discussed in the DOL’s statement of regulatory priorities, the agency will continue to implement rules pursuant to its “Plan/Prevent/Protect” regulatory and enforcement strategy that will require businesses to establish and enforce plans for identifying and remedying labor law violations. According to the agency, employers failing to take these steps “to comprehensively address the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law and, may be subject to remedial action.” In the fall 2012 Regulatory Agenda, the Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), and the Office of Federal Contract Compliance Programs (OFCCP) all propose regulatory actions furthering the DOL’s implementation of this Plan/Prevent/Protect strategy. A complete list of rules the DOL plans to actively consider in the coming months can be found here. A list of long-term regulatory actions can be found here. Highlights of the DOL’s more immediate regulatory priorities are as follows:
Occupational Safety and Health Administration (OSHA)
The majority of items on the DOL’s agency rule list address worker safety and health. OSHA’s regulatory list includes 10 regulations at the final rule stage; 10 at the proposed rule stage; and 5 items at the pre-rule stage. An additional two rule-making items are considered longer-term priorities for OSHA.
- Infectious Diseases. OSHA is in the process of determining whether additional regulations are needed to address worker exposure to infectious diseases in healthcare and other related high-risk environments. According to the agency’s statement of priorities, “OSHA is interested in all routes of infectious disease transmission in healthcare settings not already covered by its bloodborne pathogens standard (e.g. contact, droplet, and airborne).” OSHA is “particularly concerned by studies that indicate that transmission of infectious diseases to both patients and healthcare workers may be occurring as a result of incomplete adherence to recognized, but voluntary, infection control measures. The agency is considering an approach that would combine elements of the Department's Plan/Prevent/Protect strategy with established infection control practices.”
- Injury and Illness Prevention Program (I2P2). OSHA describes the I2P2 as the prototype for its Plan/Prevent/Protect strategy. A proposed rule on this program, which is scheduled to be issued by the end of 2013, “will explore requiring employers to provide their employees with opportunities to participate in the development and implementation of an injury and illness prevention program, including a systematic process to proactively and continuously address workplace safety and health hazards.”
- Recordkeeping Requirements. OSHA will consider requiring employers to electronically submit data required under OSHA’s injury and illness reporting requirements. Risk Reduction. The agency is in the early stages of drafting rules related to combustible dust hazards, crystalline silica, and beryllium.
- Long-Term Rulemaking. The agency has relegated the development of standards addressing occupational exposure to food flavorings containing diacetyl and diacetyl substitutes as a longer-term priority. The controversial plan to add a musculoskeletal disorder (MSD) column to OSHA’s recordkeeping and reporting Form 300 Log is also now considered a longer-term regulatory proposal.
Office of Federal Contract Compliance Programs (OFCCP)
- Affirmative Action. The OFCCP intends to issue a host of proposed and final rules amending current affirmative action requirements for various employers. In mid-late 2013 the OPCCP is scheduled to issue proposed rules that would increase construction contractor affirmative action requirements, and regulations that would revise sex discrimination guidelines for federal contractors and subcontractors. According to the agency, because current sex discrimination guidelines have not been updated in more than 30 years, they warrant a “regulatory lookback.” By April 2013, the OFCCP plans to issue final rules that would amend regulations regarding a contractor’s and subcontractor’s affirmative action and nondiscrimination obligations towards protected veterans under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and revise the nondiscrimination and affirmative action requirements for federal contractors and subcontractors regarding individuals with disabilities.
- Compensation Data Collection Tool. By May 2013, the OFCCP intends to issue a proposed rule that would create a compensation data collection tool “to identify contractors likely to violate” sex- and race-based compensation discrimination laws.
Employee Benefits Security Administration (EBSA)
Several proposals on the EBSA agenda “expand disclosure requirements, substantially enhancing the availability of information to employee benefit plan participants and beneficiaries and employers, and strengthening the retirement security of America's workers.” The EBSA, in conjunction with other federal agencies, is also responsible for drafting rules to implement provisions of the Affordable Care Act.
- Definition of “Fiduciary.” The EBSA plans to re-propose a rule by July 2013 that would clarify who is a “fiduciary” under ERISA when providing investment advice to retirement plans and other employee benefit plans. After withdrawing the initial proposal, the EBSA in September 2011 announced that it had decided to re-propose this rule.
- Pension Plan Disclosures. The agency intends to issue a final rule addressing the requirement that administrators of defined benefit pension plans annually disclose the funding status of their plan to the plan's participants and beneficiaries.The EBSA also intends to amend disclosure requirements applicable to plan investment options, including Qualified Default Investment Alternatives, “to better ensure that participants understand the operations and risks associated with investments in target date funds.”
- Lifetime Income Option. As discussed in the statement of priorities, the EBSA is in the early stages of developing a proposed rule under ERISA section 105 “relating to the presentation of a participant's accrued benefits; i.e., the participant's account balance, as a lifetime income stream of payments, in addition to presenting the benefits as an account balance.”
- Healthcare. Among other rules, the agency plans to develop regulations relating to contraceptive coverage under the new health care reform law for group health plans and health insurance issuers. While the regulatory agenda sets December 2012 as the target release date, the agency has publicly estimated that this rule will be released in early 2013.
Office of Labor-Management Standards (OLMS)
- Persuader Agreements - Employer and Labor Relations Consultant Reporting under the LMRDA. By April 2013, the OLMS intends to issue its controversial final rule that would broaden the scope of reportable activities by substantially narrowing its interpretation of the “advice exemption” in Section 203(c) of the Labor Management Reporting and Disclosure Act (LMRDA).
Wage and Hour Division (WHD)
- Companionship Exemption. By April 2013, the WHD intends to issue a final rule applying the Fair Labor Standards Act (FLSA) to domestic service workers. A proposed rule extending FLSA overtime and minimum wage requirements to domestic caregivers was issued in December 2011.
- Right to Know. The agency’s plans for a “Right to Know” rulemaking seems to be put on hold indefinitely, as it continues to be listed on the WHD’s long-term agenda with no target date. This rule would have updated the recordkeeping regulations under the 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” and to “clarify that the mandatory manual preparation of ‘homeworker’ handbooks applies only to employers of employees performing homework in the restricted industries.”
Equal Employment Opportunity Commission (EEOC)
The EEOC does not have any major regulatory items lined up for consideration. It still intends to issue a proposed rule that would update its race and ethnicity data collection method to conform with current reporting instructions for the EEO-1 Report, making employee self-identification the preferred method for collecting race and ethnic data on employees. It also plans to develop a proposed rule revising procedures for complaints or charges under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.
A complete list of its rulemaking items can be found here.