Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—DOL provides updates on rules likely to impact a substantial number of small entities, (Jan 22, 2025)

By Patricia K. Ruiz, J.D.

The agenda provides updates on prerule, proposed, and final regulations promulgated by the DOL.

The Department of Labor (DOL) has released its semiannual regulatory flexibility agenda, a subset of the DOL’s semiannual regulatory agenda, in accordance with the Regulatory Flexibility Act. The regulatory flexibility agenda details rules on the DOL’s semiannual agenda that are likely to have a significant economic impact on a substantial number of small entities. The agenda represents developments made during the Biden Administration.

ETA regulations. A regulation from the Employment and Training Administration (ETA) currently in the proposed rule stage would update the process by which employers seeking to employ H-2B workers would obtain temporary certification from DOL for use in petitioning DHS to employ a nonimmigrant worker in H-2B status. The proposal would also establish standards and procedures for employers seeking to hire foreign temporary non-agricultural workers for certain itinerant job opportunities, including entertainers, tree planning, and utility vegetation management.

Another regulation from the ETA, currently in the final rule stage, revises regulations addressing labor standards of apprenticeship and the governance of the National Apprenticeship System to strengthen, expand, modernize, and diversify the System by enhancing worker protections and equity, improving the quality of registered apprenticeships, revising the state governance provisions, and more clearly establishing critical pipelines to registered apprenticeships, such as pre-apprenticeships, so that the System is more responsive to current worker and employer needs. The proposal also makes technical and conforming adjustments to the current text of 29 CFR part 30, governing equal employment opportunities in apprenticeships, as appropriate.

EBSA regulations. An Employee Benefits Security Administration (EBSA) regulation, currently at the proposed rule stage, would amend the regulations implementing the Affordable Care Act’s requirement that non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage cover recommended preventive services without cost sharing. The rule would take steps to expand access to certain recommended preventive items and services available over-the-counter; require coverage of certain preventive drugs and drug-led devices in a manner that minimizes barriers to accessing the drug or drug-led device of one’s choice; reduce the likelihood that individuals face unexpected out-of-pocket costs when they receive preventive services; and ensure medical management techniques are reasonable and do not unduly prevent individuals from accessing certain preventive services. The actions would make it easier for covered individuals to access certain preventive services and improve health outcomes.

Another EBSA regulation in the final rule stage amends three interim final rules on requirements related to surprise billing setting forth requirements related to the No Surprises Act and Title II of Division BB of the Consolidated Appropriations Act, 2021.

OSHA regulations. The Occupational Safety and Health Administration (OSHA) issued a request for information on issues related to the modernization of the Process Safety Management standard and related standards necessary to meet the goal of preventing major chemical accidents. The related regulation is currently in the prerule stage.

OSHA, having concluded that current OSH requirements may not adequately cover all hazards of communication tower construction and maintenance activities, will use information collected from a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel to identify effective work practices and advances in engineering technology that would best address industry safety and health concerns. OSHA will continue to consider also covering structures that have telecommunications equipment on or attached to them.

As there is no OSHA standard for tree care operations, the industry previously petitioned the agency for rulemaking. OSHA completed a SBREFA panel in May 2020, collecting information from affected small entities on a potential standard, including the scope of the standard, effective work practices, and arboricultural specific uses of equipment to guide OSHA in developing a rule that would best address industry safety and health concerns.

OSHA published a proposed rule for heat injury and illness prevention in outdoor and indoor work settings. The proposed standard would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agriculture sectors where OSHA has jurisdiction. The standard would require employers to create a plan to evaluate and control heat hazards in their workplace. It would clarify employer obligations and the steps necessary to effectively protect employees from hazardous heat, with the ultimate goal of preventing and reducing the number of occupational injuries, illnesses, and fatalities caused by exposure to hazardous heat.

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