On November 19, 2015 the Fall 2015 Regulatory Agenda was released by the US Department of Labor. The Regulatory Agenda tracks the status of regulatory Rule Making and outlines the regulations that Federal agencies are expected to work on in the immediate future.

For funeral service, the items of interest under the OSHA Agenda include OSHA’s review of maximum Permissible Exposure Limits (PELs) for hazardous and toxic chemicals. On October 10, 2014, OSHA published a Request For Information to solicit comments and approaches that it could take to reduce the risk of employee’s developing illnesses caused by exposure to hazardous chemicals. OSHA is now in the process of reviewing and analyzing the comments it received, the said review to be completed in April of 2016. This Rule Making is in the Pre-Rule stage and the priority is listed as “Other Significant.” The review includes the permitted exposure level for formaldehyde and therefore affects funeral service.

Also contained in the OSHA Agenda, designated as a Long Term Action, and deemed to be “Economically Significant,” is the ongoing Rule Making to update the Hazardous Communication Standard which has already been revised and implemented in several stages. The notice of proposed Rule Making indicates that some additional hazard categories will be considered in order to maintain alignment with the Globally Harmonized System of classification and labeling of chemicals (GHS).

The date for the publication of a Notice of Proposed Rule Making for additional revision of this OSHA regulation, which could directly affect funeral service, is listed as “To Be Determined.” There is also a second Notice of Proposed Rule Making, dealing with revision of the OSHA Hazard Communication Standard, that would involve “significant new uses of chemical substances.” The Notice of Proposed Rule Making, on this subject, is December of 2015. The priority is listed as “Substantive” and the Agenda stage of rule making is listed as “Proposed Rule” stage.

The OSHA Regulatory Agenda also lists a Notice of Proposed Rule Making dealing with infectious disease. It is designed to protect employees in health care and other high risk environments facing long standing infectious disease hazards, such as TB, chicken pox, shingles, and measles, as well as new and emerging infectious disease such as SARS and pandemic influenza. In previous notices and directives to inspectors, OSHA has included embalming rooms as one of the work sites where this airborne exposure can occur.

OSHA specifically says that it is concerned about the ability of employees to provide health care, and other critical services, without unreasonably jeopardizing their health, and states that it is considering the need for a regulation to ensure that employers establish a “comprehensive infection control program and control measures” to protect employees from infectious disease and exposures to pathogens that can cause significant disease. The workplaces where such control measures may be necessary are generally defined as occupational settings where employees can be at increased risk of exposure to potentially infectious people. The Notice of Proposed Rule Making specifically says that an enacted standard would also apply to mortuaries.

This proposed rule making is designated as “Economically Significant,” the Agenda stage of rule making is listed as “long term action” and the Notice of Proposed Rule Making is given as December of 2016.

This Notice of Proposed Rule Making does refer to the stake holder meetings and SBREFA review in which funeral service did testify against inclusion of the funeral industry in such a proposed standard or regulation. Apparently OSHA is still focusing on mortuaries as a location of potential exposure to aerosolized infectious disease of the type being considered in this proposed rule making.

OSHA is also considering enacting an injury and illness prevention regulation which will be a rule requiring all employers to implement an Injury and Illness Prevention Program that would involve planning, implementing, evaluating and improving processes and activities that protect employee safety and health. This would be a mandatory program that would cover large as well as small employers such as funeral service employers. In the past, regarding small employers, a proposed regulation of this type has been characterized as a “rule to require enforcement of existing rules” and objected to, on behalf of small business, as unnecessary and unduly burdensome.

The priority of this Rule Making is listed as Economically Significant and the agenda stage as “Long Term Action.” The Notice of Proposed Rule Making is listed “as to be determined.”

On the Wage and Hour front, the Department of Labor, Wage and Hour Division, is moving forward with the rule making to redefine and delineate the Wage and Hour Law’s overtime exemption for Executive, Administrative, and Professional employees.

The proposal is to update the existing regulations relating to minimum wage, overtime and pay protection by setting the standard salary level required for the exemption at the 40th percentile of weekly earnings for full time salaried employees, projected to $970 per week or $50,440 annually in 2016, increasing the total annual compensation requirement needed to exempt highly compensated employees to the annualized value of the 90th percentile of weekly earnings of full time salaried employees $122,148 annually, and by establishing a mechanism for automatically updating the salary and compensation levels going forward to ensure they would continue to provide a useful and effective test for exemptions. The current regulations, for the overtime exemption set the standard salary level, to not less than $455 a week.

The Final Rule is scheduled to be published in July, 2016 and will directly affect and re-define who is and is not covered by the overtime exemption as a salaried employee. By raising the threshold income levels, employees who were previously exempt would no longer be exempt and overtime would have to be paid.

If you have questions regarding the published Federal Regulatory Agenda and its effect on Funeral Service, you can direct them to Edward M. Ranier, Esquire, (410) 967-1812 or contact him at ranierlaw@gmail.com.

US Department of Labor Releases Fall 2015 Regulatory Agenda

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