Punching In: Labor Agencies Race Against the Clock on Rulemaking

Monday morning musings for workplace watchers.

Rules Rush Keeps Agencies Busy|Congress Tackles Long-Term Care Worker Shortage

Rebecca Rainey: Federal labor agencies are in a regulatory sprint, wrapping up a spate of high profile rules over the past several weeks in an effort to prevent those policy changes from falling victim to the Congressional Review Act. The quick procession of rules, which cover new requirements for employers on issues ranging from worker safety to pregnant workers’ rights, comes as the expected CRA deadline could be as early as mid-May.

“We’re definitely seeing agencies trying to get their rules out as fast as they can right now. They’re absolutely aware of the window coming up,” said Sarah Hay, a policy analyst at the George Washington University Regulatory Studies Center.

The US Labor Department in the last few weeks issued rules establishing new limits for miners’ exposure to silica and a a rule allowing “third-party” worker representatives to join worker safety inspections. The US Equal Employment Opportunity Commission also finalized long awaited Pregnant Workers Fairness Act regulations last week, which require employers to provide “reasonable accommodations” to workers for conditions related to pregnancy and childbirth.

There are also several rules that were recently cleared by the White House budget office, signaling that they could be published any day. That includes a worker safety rule on hazard communication, a rule expected to expand overtime pay protections to millions more workers, a retirement plan fiduciary advice rule, and a regulation to expand labor rights and protections to temporary agricultural workers.

The CRA gives Congress 60 days to “disapprove” a regulation issued by a federal agency. Such disapproval resolutions can pass both chambers with just a simple majority, and the CRA provides a fast-track process in the Senate.

The law also allows “midnight rules” — or those issued in the last 60 working days of the Congressional session — to be carried over for reconsideration in the next Congress, a prospect that the Biden administration is currently trying to avoid.

The CRA typically comes into play during presidential election years when there’s the potential for a change in administration and party power in Congress, because the president is unlikely to cancel a regulation issued by their own administration. When last minute rules are “carried over” by the CRA, the 60-day period for Congress to disapprove the regulation restarts on the 15th day of the new Congress.

Hay emphasized that this CRA lookback deadline is a moving target that may actually be closer to July or August, and not the May estimate that’s based off the congressional calendar alone. She noted that’s because Congress has been increasingly using “pro forma” sessions instead of fully adjourning, which adds additional days of Congressional session to the calendar. Those extra days mean more time for agencies to run down the 60-day CRA clock during this administration.

“When you take into account the pro forma days, which aren’t noted on the congressional calendar, then you’re looking at an estimate that’s a little bit later in the summer,” Hay explained.

“And so if I were an agency, I would still be working towards the main deadline, because I’m just a very risk averse person,” she said. “But as an academic, I would be a little less concerned right in this moment.”

READ MORE:

• US Sets New Limits on Miners’ Exposure to Toxic Silica Dust
• Final EEOC Protections for Pregnant Workers Cover Abortion
• New OSHA Rule Gives Hazy Guidance on Safety Inspection Tagalongs

President Joe Biden speaks during a news conference following the Group of Seven leaders summit in Hiroshima, Japan, on May 21, 2023. His administration is currently hurrying to finalize a slew of labor-related rules to ensure they are not vulnerable to a Congressional Review Act resolution if Biden is not re-elected.

Photographer: Kiyoshi Ota/Bloomberg

Diego Areas Munhoz: The challenges facing the workforce caring for the youngest and oldest Americans has Congress’ attention, and while members of both parties acknowledge there are issues, the solution remains unclear.

The Senate Aging Committee held a hearing last week on the troubles faced by the long-term care industry, while the Small Business panel in the chamber examined similar issues in the child care workforce earlier this month.

In both hearings, lawmakers noted the shortage of workers that has plagued these industries. Low wages have been a big factor driving the lack of people willing to join the workforce, they said.

The median hourly wage for childcare workers is 40 cents higher than that of fast-food workers at $14.60, while “home health and personal care aides” make a median wage of $16.12 an hour, according to recently released DOL data.

The low figures are due to care providers facing the challenge of keeping prices high enough to make some profit but low enough to be affordable, Sen. Tim Kaine (D-Va.) said in an interview.

"[Childcare providers] say and I’ve heard some of the companies that use home health workers say the same thing: ‘I’d like to pay my workers more. If I did that, parents couldn’t afford to send their kid to my shop, you couldn’t afford to have in-home care for your folks,’” Kaine said. “That’s why some federal investment is necessary.”

There is also a concern among lawmakers and industry stakeholders that the troubles in the care industries will spread to the broader economy. Workers with aging parents or with young children—or both—are finding it difficult to go to work without affordable care for their loved ones, they say.

“Everybody is saying, ‘oh I can’t hire people, the unemployment rate is too low.’ Well, we have this group of workers out there that want to be in the workforce, but they can’t,” Kaine said.

Kaine and most Democrats on Capitol Hill say the federal government action needs to do more to resolve these challenges. Sen. Bob Casey (D-Pa.), chairman of the Aging panel, and Kaine introduced the Long-Term Care Workforce Support Act that would increase federal funding for the industry.

President Joe Biden asked Congress for $16 billion for child care stabilization funding last year. But lawmakers didn’t take up Biden’s request as Republicans have been hesitant in spending more federal dollars, and have characterized many of the Democratic proposals as ineffective “one-size-fits-all” approaches.

They have also said these issues could be left to employers who can offer childcare as part of the competition for workers, and to states that may know how to best handle their needs. Sen. Mike Braun (R-Ind.) also suggested a better way to solve workforce shortages is through more available job training.

“We don’t need, really, a lot more from the federal government, in my opinion, simply because it’s doing a lot, it’s borrowing a lot from our future generations to do it. A laboratory of 50 different states, where you got to live within your means, I think might be a better way to approach it,” Braun said in the Aging panel’s hearing.

“To grow the long-term care workforce the federal government should make it easier for people to enter it by removing barriers,” Braun added, touting several bipartisan workforce development bills he co-sponsors.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.