January 2022 Government Affairs Update

Supreme Court Blocks Enforcement of OSHA COVID-19 Vaccine Mandate

Last week, the U.S. Supreme Court issued a stay against the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with 100 or more employees. The Court ruled 6-3 that OSHA likely exceeded its authority in promulgating the ETS and a stay was warranted. The Court’s three liberal justices dissented from the majority’s opinion.

OSHA is now blocked from enforcing the provisions of the ETS while it will be reconsidered by the Sixth Circuit Court of Appeals. BSCAI notes that last week’s decision is not related to the COVID-19 vaccine mandate for federal contractors. Any judicial action on that mandate will be separate from today’s ruling. BSCAI will provide additional updates on the ETS as they become available.

2021 OSHA Injury and Illness Data Due by March 2

BSCAI is reminding employers that they must electronically submit Form 300A data on workplace injury and illnesses to the Occupational Safety and Health Administration (OSHA) by March 2, 2022. BSCAI members can find OSHA’s injury tracking website here and further guidance on OSHA’s reporting requirements here.  

Electronic submissions are required by establishments with 250 or more employees currently required to keep OSHA injury and illness records, and establishments with 20-249 employees classified in specific industries with historically high rates of occupational injuries and illnesses.

The electronic reporting requirements are based on the size of the establishment, not the firm. An establishment is defined as a single physical location where business is conducted or where services or industrial operations are performed. Covered employers must submit Form 300A data even if they had zero recordable injury or illnesses in 2021.

Latest Update on Budget Reconciliation Negotiations

Last month, Sen. Joe Manchin (D-WV) announced his opposition to President Biden’s $2 trillion budget reconciliation plan known as the Build Back Better Act.  President Biden and congressional Democrats had been attempting to pass sweeping legislation that provided new investments in social programs related to climate change, housing, health care, child care and education.

While the Build Back Better Act passed the House in November, Sen. Manchin’s opposition effectively kills the legislation in its current form as Democrats need the support of all 50 of their senators to pass the bill through the budget reconciliation process. The legislation contained several provisions that BSCAI had been closely tracking, including tax increases, paid leave mandates, immigration, ten-fold increases to OSHA fines and more.

Despite Sen. Manchin’s opposition, Majority Leader Chuck Schumer (D-NY) has threatened to hold a vote on the bill later this month to put every senator on the public record. However, it is unclear whether Senate Democrats would follow through with a vote on legislation that is likely to fail. There also remains the possibility that Majority Leader Schumer will attempt to bring Sen. Manchin back to the negotiating table with a scaled-down version of the bill.

BSCAI will continue to monitor any new legislative efforts on Capitol Hill as it pertains to the budget reconciliation process and keep members updated on the latest developments.

DHS to Supplement H-2B Cap with Additional Visas for FY 2022

The Department of Homeland Security (DHS) recently announced the forthcoming publication of a joint temporary final rule to make available an additional 20,000 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2022. These visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022.

This supplemental cap marks the first time that DHS is making additional H-2B visas available in the first half of the fiscal year. Earlier this year, USCIS received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the FY 2021 H-2B supplemental visa temporary final rule. 

The supplemental H-2B visa allocation consists of 13,500 visas available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. The remaining 6,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti and the Northern Triangle countries of Honduras, Guatemala, and El Salvador.

The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature for a limited period of time, such as a one-time occurrence, seasonal need, or intermittent need. Employers seeking H-2B workers must take a series of steps to test the U.S. labor market. They must also certify in their petitions that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work for which they seek a prospective foreign worker. In addition, they must certify that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Additional details on eligibility and filing requirements, will be available in the temporary final rule and the Cap Count for H-2B Nonimmigrants webpage.