As part of the Biden administration’s Fall 2023 Regulatory Plan, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) have released their 2024 regulatory agendas.
EEOC Regulatory Agenda
The EEOC identified nine pending items in its Fall 2023 Regulatory Agenda; five are at the proposed rule stage, and four are at the final rule stage.
The EEOC pointed to one item as a key priority in its 2024 Regulatory Agenda: the proposed rule implementing the Pregnant Workers Fairness Act (“PWFA”). The agency expects to draft a final rule based on the comments received in response to the proposed rule during the public comment period, which ended on October 10, 2023.
The PWFA went into effect on June 27, 2023, and requires employers with 15 or more employees to provide reasonable accommodations to current and prospective employees with known limitations stemming from pregnancy, childbirth, or related medical conditions. However, the employer need not provide these accommodations if they would constitute an undue hardship. The PWFA protections are designed to fill the gaps between protections already available to pregnant workers through the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964. Some examples of the reasonable accommodations that the PWFA may require for pregnant employees include the following:
- Allowing them to have water or food in the workplace;
- Reducing their lifting requirements;
- Providing pregnant workers the ability to sit;
- Allowing them additional breaks to use the bathroom, eat, and rest;
- Excusing them from activities that involve exposure to compounds unsafe for pregnancy; and
- Providing them with appropriately sized uniforms and safety apparel.
DOL Regulatory Agenda
The DOL first summarized the final and proposed rules that it issued during 2023, which included the following:
- A final rule updating provisions of the Davis-Bacon and Related Acts to ensure the payment of locally prevailing wages to construction workers on federally funded or assisted construction projects;
- A final rule rescinding certain provisions concerning the religious exemption for federal contractors and subcontractors to comply with the nondiscrimination principles of Title VII of the Civil Rights Act of 1964 and reaffirming nondiscrimination protections for employees of federal contractors;
- A final rule modifying DOL procedures for removing barriers to equal employment opportunity, particularly by resolving potential employment discrimination at federal contractor workplaces;
- A final rule requiring employers to disclose if they are federal contractors or subcontractors on their “LM-10” forms, which they must file if they are hiring a consultant about labor relations activities or labor disputes;
- A proposed rule to amend existing standards to better protect miners against occupational exposure to respirable crystalline silica and improve respiratory protection in general;
- A proposed rule to provide better guidance on whether a worker is an employer or independent contractor under the Fair Labor Standards Act;
- A final rule issued jointly with the Departments of Treasury and Health and Human Services to implement the No Surprises Act; and
- Proposed rules issued jointly with the Departments of Treasury and Health and Human Services to fully protect consumer rights under the Mental Health Parity and Addiction Equity Act (“MHPAEA”) and provide guidance to plans and issuers on compliance with the MHPAEA.
The DOL also outlined its priority agenda items for each division of the agency as follows.
Wage and Hour Division (WHD)
- A final rule updating the executive, administration, and professional exemptions for the Fair Labor Standards Act (“FLSA”);
- A final rule offering certain employees employed under federal service contracts a right of first refusal of employment when contracts change over to retain skilled workers in the federal services workforce; and
- A final rule that addresses and clarifies distinctions between employees and independent contractors under the FLSA.
Employee Benefits Security Administration (EBSA)
- A final joint rule with the Departments of Treasury and Health and Human Services to implement the MHPAEA and address amendments to the Act from the Consolidated Appropriations Act of 2021;
- A final joint rule with the Departments of Treasury and Health and Human Services to cover certain preventive services under the Affordable Care Act (“ACA”), including a new pathway for individuals to receive free contraceptive services; and
- A proposed rule to reconsider the criteria for a group or association of employers to be eligible to sponsor a multiple-employer group health plan.
Employee and Training Administration (ETA)
- A proposed rule that will ensure that H-2 visa worker programs promote worker voice and other protections;
- A final rule updating the Wagner-Peyser Employer Service regulations to provide support for jobseekers; and
- A proposed rule to establish a National Apprenticeship System.
Occupational Safety and Health Administration (OSHA)
- A proposed rule on Infectious Diseases to protect employees in healthcare and other high-risk environments from exposure to and transmission of persistent and new infectious diseases;
- Advancement of a proposed rule on heat illness prevention for workers in the workplace due to the growing threat of climate change; and
- A proposed rule updating standards for emergency response and preparedness to reflect the full range of hazards and concerns first responders face and changes in performance specifications for PPE.
Mine Safety and Health Administration (MSHA)
- A final rule imposing a new silica standard to address miner safety; and
- A final rule requiring mine operators to develop and implement a written safety program for mobile and power haulage equipment used at surface mines and surface areas of underground mines.
