December 7, 2023

Washington Wire: One Voice Files Heat Rule Comments



One Voice Files Heat Rule Comments
On October 2, 2023, One Voice filed formal comments with the Occupational Safety and Health Administration (OSHA) on materials provided to the Small Business Advocacy Review (SBAR) Panel regarding a potential Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings standard.
OSHA, as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA) process, held numerous sessions to review the impact on small businesses of a possible general-industry heat rule for indoor and outdoor work and released a "regulatory framework" document. 
"This document is meant to provide an outline of potential options for the various elements of a proposed rule. OSHA envisions a programmatic standard that could require employers to create a plan to evaluate and control heat hazards in their workplace. The standard could allow for flexibility for employers to customize the plan to their workplace. The standard could also include some elements that set specifications related to heat exposure levels," the regulatory framework reads.
In the comments, One Voice argued that a broad one-size-fits-all standard requiring engineering controls, such as air conditioning, to meet an 80-degree heat index threshold across the entirety of large manufacturing facilities would not only lead to prohibitive costs but in some cases is infeasible. The standard could require mandatory fifteen-minute breaks every two hours, among other mandates.
One Voice is concerned that an overly broad standard would fail to recognize the diversity of indoor work environments and the unique situations across industries and would impose burdensome requirements for manufacturers. 
While no date has been set for the release of a proposed rule, OSHA will begin the process by considering the input received from the small entity representatives (SERs) that participated in the SBREFA sessions as well as comments from the public on the potential options and various elements of a heat standard as they move forward toward in the development of a new standard.

Final Independent Contractor Rule Under Final Review
The Department of Labor (DOL) is set to soon issue a new worker classification rule. The White House Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) received the “Employee or Independent Contractor Classification Under the Fair Labor Standards Act” regulation on September 28, 2023. The review process typically takes up to 90 days but can be more or less depending on the action. 
Under the Trump administration, the DOL issued a final rule that would determine independent contractor status based on two core factors: who exercises substantial control over the performance of the work and (2) whether the worker has an opportunity to earn profits or incur losses based on their own judgment. Three additional factors would be considered if the core factors were non-determinative. While initially withdrawn by the Biden administration, the rule was reinstated by the court in March 2022. 
The Biden administration's independent contractor proposed rule, issued on October 11, 2022, would require employers to use a totality-of-the-circumstances analysis, in which all the factors do not have a predetermined weight, instead of having two core factors.


New EU Carbon Border Tariff System Launched
On October 1, 2023, the European Union (EU) launched the initial phase of its new Carbon Border Adjustment Mechanism (CBAM) to impose CO2 emissions tariffs on imported steel, cement, and other goods. While tariffs will not be collected until 2026, this initial transitional phase requires importers to report the greenhouse gas emissions embedded during the production of certain goods. 
Initially, the CBAM covers specified goods in the carbon-intensive sectors of cement, electricity, fertilizers, aluminum, iron, steel, and hydrogen. Beginning with the fourth quarter of 2023, importers will be required to report the imported quantity of CBAM goods and the direct and indirect greenhouse gas emissions that occur in the course of the production process of those imported goods. The first reports are due by January 31, 2023. 
Once the permanent CBAM system is in place on January 1, 2026, certificate trading will begin. Importers will be required to purchase and then turn over “CBAM certificates” to offset emissions from imported goods. 


EEOC Issues Enforcement Plan
On September 21, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released its Strategic Enforcement Plan (SEP) for fiscal years 2024 through 2028. The SEP outlines the priorities for EEOC in tackling workplace discrimination over the next five years.
According to the SEP, the EEOC intends to focus on several priorities:
  • Eliminating barriers in recruitment and hiring;
  • Protecting vulnerable workers and persons from underserved communities;
  • Addressing selected emerging and developing issues;
  • Advancing equal pay for all workers;
  • Preserving access to the legal system; and
  • Preventing and remedying systemic harassment.
As identified in the draft SEP published in January, a priority for the EEOC will be to focus on discrimination in hiring due to the use of automated systems, such as artificial intelligence (AI) tools. The EEOC is looking to target systems that exclude or adversely impact protected groups such as age, sex, and race. According to the EEOC, technology that can result in discrimination may include software that incorporates algorithmic decision-making or machine learning; automated recruitment, selection, or production and performance management tools; and other existing or emerging technological tools used in employment decisions.
The EEOC last addressed hiring tools in 1978, when it adopted the Uniform Guidelines on Employee Selection Procedures guidelines, establishing a “four-fifths rule,” which looks at whether a hiring test has a selection rate of less than 80% for protected groups compared to others.
Another emerging EEOC issue is enforcing the Pregnant Workers Fairness Act (PWFA). In effect since June 27, the PWFA broadens protections for workers unable to perform one or more essential job functions due to pregnancy, childbirth, or related conditions. EEOC sent an Amendment of Procedural and Administrative Regulations to the Office of Information and Regulatory Affairs (OIRA) for final review on October 3, 2023. The EECO is required to issue regulations clarifying key points of the PWFA by December 29. 



Commerce Announces Smaller-Scale Semiconductor Supply Chain Funding
On Friday, September 29, 2023, the U.S. Department of Commerce’s CHIPS Program Office announced $500 million in funding as part of the CHIPS Incentives Program for smaller supply chain projects and businesses. This CHIPS program funding will support projects with capital investment below $300 million involving the construction, expansion, or modernization of commercial facilities in the United States for semiconductor materials and manufacturing equipment.
Eligible entities include “a nonprofit entity; a private-sector entity; a consortium of private-sector entities; or a consortium of nonprofit, public, and private-sector entities with a demonstrated ability to substantially finance, construct, expand, or modernize a facility relating to the fabrication, assembly, testing, advanced packaging, production, or research and development of semiconductors, materials used to manufacture semiconductors or semiconductor manufacturing equipment.” 
Awards will be negotiated and tailored to each individual project but will direct funding in a combination of grants, cooperative agreements, and other transaction agreements. Commerce expects most direct funding awards will equal 10 percent of project capital expenditures, but some applicants could receive as much as 30 percent of project capital expenditures in direct funding. 
The two-phase application process begins with applicants submitting a concept plan describing how their proposed project addresses core strategic objectives, including U.S. economic and national security. Concept plans will be accepted between December 1, 2023, and February 1, 2024. Commerce will review the concept plans and then invite certain applicants to submit a full application. The full application submission dates will be communicated to applicants individually upon notifying them of their advancement. 
For additional information and resources on the CHIPS Incentive Program visit