Regulation Changes on Tap for New Year

As Yogi Berra once said, “This is like déj vu all over again.” Barack Obama is still president of the United States, Democrats still control the Senate, and Republicans still control the House of Representatives. President Obama’s victory shattered lots of long-standing political metrics such as the first incumbent reelected with unemployment around 8 percent since Franklin Delano Roosevelt, but also surprising was the lower voter turnout for the 2012 election. Obama’s vote total was off about 8 million from 2008 and Mitt Romney’s was about 2 million less than John McCain’s. Regardless, it’s electoral votes that matter and President Obama won handily. And so, the political landscape is unchanged.

In December 2010, the Occupational Safety and Health Administration rescinded its fall protection enforcement directive for steep-slope roofing that had allowed slide guards on residential roofs. Full enforcement of the new directive, which requires fall-arrest harnesses and lanyards at all times, was to begin Sept. 15, 2011, but pushback from stakeholders led to congressional pressure, and OSHA extended the date to Dec. 15, 2012.

Other OSHA regulations in the pipeline include a new Musculoskeletal Disorder (MSD) column in the 300 Log that employers must keep to record employee injuries and illnesses. Language in the most recent OSHA appropriations bill prohibits funds from being used to implement the new column, but is in effect only until March 27, 2013.

OSHA’s final rule on crystalline silica has been on hold at the Office of Management and Budget’s Office of Information and Regulatory Affairs since Feb. 14, 2011. OSHA is expected to issue it unless it pulls it back to add hydraulic fracturing (fracking) for oil and natural gas). OSHA also is in the process of writing a new body of regulations called the Injury and Illness Prevention Program (the I2P2 rule), which would address every hazard covered by an existing OSHA standard or the General Duty Clause. If OSHA promulgates I2P2, it could be so broadly interpreted as to eliminate the need for further OSHA rulemakings, including an ergonomics standard.

Other Department of Labor actions include the Employment and Training Administration’s H-2B guest worker visa wage and program rules that would make it nearly impossible for construction firms to use. These rules have been temporarily suspended, and the wage rule is subject to an appropriations rider through March 27, 2013.

At the Environmental Protection Agency, the Lead: Renovation, Repair and Painting Rule for residential properties will likely continue as is unless removal of the Opt-Out provision for homeowners is successfully challenged in court. The Lead Exposure Reduction Amendments Act of 2012 (S. 2148/H.R. 5911) introduced in the 112th Congress would address LRRP issues for remodelers but did not advance, and prospects for legislative relief don’t look good for the 113th Congress. EPA’s enforcement of LRRP has been ramped up, and on Nov. 14 the agency announced it had fined 16 firms for violations.

Finally, there’s the first round of taxes and regulations to come from the Patient Protection and Affordable Care Act. In 2013, those earning more than $200,000 annually will pay a 0.9 percent surtax on top of the 2.9 percent Medicare tax and a 3.8 percent surcharge on investment income. The Health Insurance Tax that will be levied on insurance companies in 2014 will undoubtedly be passed to small businesses in the fully insured market.

The employer mandate goes into effect in 2014 and requires that employers with 50 or more “full-time equivalent” employees provide government-approved health care benefits to their employees or pay a penalty to the IRS. This trigger is based on an average of 50 full-time employees during the previous calendar year, which, in this case, is 2013. With that in mind, several companies plan to cut their employee hours to less than 30 hours per week because full-time is defined as an employee who works 30 hours per week, per month, on average.

Craig Brightup is chief executive officer of Washington, D.C.-based The Brightup Group LLC, a government relations consulting firm. He has provided services for 15 different organizations since 2009, including the U.S. Chamber of Commerce and National Roofing Contractors Association.