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Legislative Updates from our Partners
FCA International and IMSCA keep you informed on what is happening in Washington, D.C. and Springfield that will affect finishing contractors. For the latest news, please see below.
Week of 8-18-23 : Volume 23, Issue 22
Congressional Overview – Looking Ahead
For the past 18 months, polling has consistently shown that 70% of the voters believe that the country is headed in the wrong direction. The combination of COVID, soaring inflation, and a lack of faith in our political leaders has clearly taken its toll on the public’s confidence, but there are signs that the mood has begun to brighten with a strong labor market, rising wages, easing inflation and the stock market is at its highest level since the beginning of last year. These trends are reflected in the July consumer confidence numbers, now at nearly a two-year high.
With Congress in recess until after Labor Day, September promises to be tumultuous, with a possible government shutdown. Complicating matters further, several additional must-pass pieces of legislation have Sept. 30 deadlines, including the reauthorization of the Federal Aviation Administration and the extension of the Farm Bill. There are also several defense-related fights that do not appear anywhere near resolution, including passage of the National Defense Authorization Authority (NDAA) and additional funding for Ukraine. The differences between the Republicans in the House and Senate are primarily around spending and putting “anti-woke” policy riders on spending bills.
OSHA Heat Stress Rule Update
Since 2021, OSHA has been working on a heat stress rule, following a decade’s worth of advocacy groups and members of Congress calling for action. Supporters of the rule cite a changing climate and worker heat-related deaths as drivers of their concern. Outside of the rulemaking, the agency has been conducting an annual heat awareness campaign since 2012 and enacted a heat enforcement program in 2022. The challenge for OSHA is that the rule’s requirements will have to be precise and per OSHA, the agency must go through 46 steps to enact a rule, 39 of which are dictated by laws passed by Congress or White House executive orders. The rule is currently at step 20, conducting a small business review, which is a requirement set by law that all significant OSHA rules must fulfill.
Additionally, working conditions for indoor and outdoor workers vary considerably, but OSHA is attempting to regulate both at same time rather than first issuing either an outdoor or indoor rule. OSHA’s refrain of “water, rest, shade” fits for outdoor workplaces such as construction sites and farms, but it does not necessarily translate well for workers inside warehouses and industrial buildings with no air conditioning. The expansive scope of OSHA’s proposed rule means conducting scientific and economic analyses for a wide range of industries and then writing a common set of requirements for protecting workers. It’s not a simple undertaking.
For regulators, a confounding part of the heat stress regulation is deciding which temperatures trigger requirements for employers. For outdoors, states with heat rules have generally set 80 degrees or an 80-degree heat index as the trigger temperature. OSHA could mandate that employers have a written heat stress prevention program, per its 2021 rule proposal. Any contractors who need a heat stress program can leverage FCA’s program, which is included in their FCA membership.
Studies of OSHA heat enforcement cases found most cited employers did not have a hot weather plan or train workers about heat stress. Under a plan for indoor work, employers could alleviate heat concerns by improving ventilation, increasing air conditioning, and insulating heat sources. For outdoor work, workers would need regular access to shade, time to rest, and cool water.
A key component may be allowing workers to acclimate or become accustomed to laboring in hot weather. Studies mentioned in OSHA’s rule proposal suggested a worker needs at least five days to adjust to hot temperatures and that laborers starting acclimatization should not work a full shift in hot conditions. Employers have countered that acclimatization shift restrictions could lead to temporary workers not being hired. Another concern is that phasing in workers is not practical for worksites where workers cannot be rotated between hot and cooler daily assignments.
Finally, regulators will have to consider that heat affects everyone differently. In past enforcement actions, OSHA has suggested employers be aware if workers have medical conditions that make them more susceptible to heat stress, but some employers see the issue as raising medical privacy concerns and opening the door to disability and age discrimination allegations.
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Recently approved requirements that may apply to you and your business
IDOL Equal Pay Certificate
Per HB 4604 (P.A. 102-0705) of the 102nd General Assembly, private businesses with 100 or more employees are required to submit an application to obtain an Equal Pay Registration Certificate by providing certain pay, demographic and other data to the IL Department of Labor by March 24, 2024 and recertify every two years after the first submission. The law also requires such employers to submit certain information with their application, including: a statement certifying that the business is in compliance with the Equal Pay Act of 2003 and other State and Federal laws related to equal pay. For the purposes of this requirement, “business” is defined as “any private employer who has 100 or more employees in the State of Illinois and is required to file an Annual Employer Information Report EEO-1 with the Equal Employment Opportunity Commission, but does not include the State of Illinois or any political subdivision, municipal corporation, or other governmental unit or agency. Please visit IDOL’s Equal Pay Registration Certificate page to access the online portal that businesses must use to submit their contact information and required data to IDOL, a training guide for use of the portal, a compliance statement template, and other certification information and resources. In addition, you are encouraged to review the Frequently Asked Questions section of the IDOL webpage.
Paid Leave for All Workers Act
On January 10, 2023, the Illinois General Assembly approved SB 208 (P.A. 102-1143), the “Paid Leave for All Workers Act”. This new law requires private employers to provide earned paid leave to employees to be used for any reason. The Paid Leave for All Workers Act takes effect on January 1, 2024 and sets forth a minimum of 40 hours (or 5 days) paid leave for all employees (regardless of size of employer).
The new law includes an exemption for signatory employers of collective bargaining agreements in the construction industry and states the following: “In no event shall this Act apply to any employee working in the construction industry who is covered by a bona fide collective bargaining agreement…”. In addition, the Act includes a very specific definition of “construction industry”: “Construction industry” means any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintenance, landscaping, improving, wrecking, painting, decorating, demolishing, or adding to or subtracting from any building, structure, highway, roadway, street, bridge, alley, sewer, ditch, sewage disposal plant, waterworks, parking facility, railroad, excavation or other structure, project, development, real property, or improvement, or to do any part thereof, whether or not the performance of the work herein described involves the addition to or fabrication into, any structure, project, development, real property, or improvement herein described of any material or article of merchandise. “Construction industry” also includes moving construction related materials on the job site or to or from the job site, snow plowing, snow removal, and refuse collection.
However, while the law exempts signatory contractors in the construction industry from these new requirements, the new law will apply to a contractor’s administrative and other support staff who are not covered by a collective bargaining agreement. Please visit IDOL’s Paid Leave for All Workers Act page to access more information on this new law. The webpage also includes a Frequently Asked Questions section.
Annual Sexual Harassment Prevention Training
Public Act 101-0221, Illinois employers are required to train employees on sexual harassment prevention on an annual basis. The training must be completed by December 31, 2023. This requirement applies to all employers with employees working in this State. Please visit the IL Department of Human Rights Sexual Harassment Prevention Training Program page to access more information, including Frequently Asked Questions.