December 2021 Government Affairs Update

Update on OSHA COVID-19 Vaccination Mandate

The U.S. Court of Appeals for the Fifth Circuit recently issued a temporary stay against the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing.  After the ruling, OSHA announced they had suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

The Sixth Circuit Court of Appeals was recently chosen in a lottery to hear the case against the ETS and will issue a ruling in the near future. The case is expected to eventually reach the U.S. Supreme Court by the end of December. As of now, the Sixth Circuit has not yet lifted the Fifth Circuit’s stay on the ETS.

While OSHA has temporarily suspended enforcement of the ETS due to court order, BSCAI would like to remind members that the mandate is still a promulgated rule and could go into effect should the stay get lifted by the Sixth Circuit in the coming days.

If the court’s stay is lifted, covered employers would be required to be in compliance with the rule’s requirements that went into effect last week (Dec. 6) and Jan. 4, 2022. BSCAI members are encouraged to have an implementation strategy in place should the court reinstate the rule.

BSCAI continues to monitor all legal activity surrounding the ETS and will keep members updated accordingly. Members can find the text of the ETS here and additional guidance from OSHA here.

For any further questions, please contact BSCAI’s Director of Government Affairs Kevin McKenney at kmckenney@bscai.org.

House Advances Budget Reconciliation Bill

The House of Representatives recently voted to pass the Build Back Better Act by a party-line vote of 220-213. As previously reported by BSCAI, the roughly $2 trillion proposal calls for new investments in social programs related to climate change, health care, labor, immigration, education and child care. President Biden and congressional Democrats are trying to advance the bill through the budget reconciliation process which requires only a simple majority of the vote in each chamber of Congress.

The legislation would fund the new programs through tax increases on America’s wealthiest individuals and largest corporations. Democrats have backed off several proposed tax increases on small businesses, including increases to individual and corporate rates, capital gains, pass-through businesses and estate taxes.

The Build Back Better Act now moves to the Senate where it is expected to face significant revisions due to concerns from moderate Democratic senators. While Senate Majority Leader Chuck Schumer (D-NY) has said he would like to vote on the legislation before the holiday break in December, negotiations could spill into 2022 as Democrats work through a number of unresolved policy disagreements between the House and Senate. A summary of the bill can be found below.

Programs:

• Education and Workforce Development: Expands access to education beyond high school by raising the maximum Pell grant, and investing in workforce development, including community college workforce programs, sector-based training, and apprenticeships.
• OSHA Penalties: Includes ten-fold increases to certain civil penalties (fines) for OSHA violations.
• SALT Deduction: Increases the state and local income tax (SALT) deduction cap to $80,000 through 2025.
• Paid Leave: Establishes a mandatory paid family and medical leave program.
• Labor: Includes a provision from the Protecting the Right to Organize (PRO) Act which would establish new civil penalties for employers who are found to have discriminated against an employee for joining a union.
• Immigration: Provides work authorization for undocumented people living in the United States. Makes reforms to fix the employment-based green card backlog.

Tax Increases:

• 15% corporate minimum tax on corporations with $1 billion in profits.
• 1% surcharge on corporate stock buybacks.
• Adopt a 15% country-by-country global minimum tax on foreign profits of U.S. corporations.
• Expand the 3.8% Net Investment Income Tax for individuals making over $400,000.
• New 5% surtax on individuals making over $10 million and additional 3% surtax on individuals making over $25 million.
• Continue limitation on excess business losses.
• Increased IRS tax enforcement.

Congress Passes Legislation to Avert Government Shutdown

Congress recently passed a short-term continuing resolution (CR) to fund the federal government at existing levels through Feb. 18, 2022. The CR also includes $7 billion for Afghan refugee resettlement. This week, Congress is expected to take up legislation to lift the nation’s debt ceiling. The Department of Treasury has said that Congress will need to raise the debt ceiling by Dec. 15, 2021 before Treasury exhausts its borrowing authority.

DOL Announces Final Rule on Minimum Wage for Federal Contractors

The U.S. Department of Labor (DOL) recently announced a final rule that implements Executive Order 14026 to increase the hourly minimum wage for employees on federal contracts to $15 per hour beginning Jan. 30, 2022. President Biden signed the order on April 27, 2021.

The rule applies in all 50 states, the District of Columbia, and specified U.S. territories, and does the following:

• Increases the hourly minimum wage for workers performing work on or in connection with covered federal contracts to $15 beginning Jan. 30, 2022. 
• Continues to index the federal contract minimum wage in future years to inflation.
• Eliminates the tipped minimum wage for federal contract employees by 2024. 
• Ensures a $15 minimum wage for workers with disabilities performing work on or in connection with covered contracts.
• Restores minimum wage protections to outfitters and guides operating on federal lands. 

The final rule applies to new contracts, and renewals and extensions of existing contracts, beginning Jan. 30, 2022.