will be issued sometime this month), we would not be surprised to see it propose a rule that gives businesses more flexibility and certainty (but visit our Insights page to read more on why this will be a real litmus test for Secretary Chavez-DeRemer). Note: The National Labor Relations Board and other federal agencies may apply different independent contractor tests in other contexts. 3. Overtime Salary Threshold Under the FLSA (RIN 1235-AA39 and RIN 1235-AA47) The DOL is currently reviewing the Biden administration’s overtime rule – which dramatically boosted the salary threshold for the FLSA’s so-called “white collar” overtime exemptions but was blocked nationwide by a federal judge before its full effective date – and determining how to proceed. But don’t expect the agency to move quickly on this one – its two proposals related to the overtime rule are on a separate “Long-Term Actions” list and reflect that the DOL has not yet determined the type of actions it will take or any timeline for doing so. In the meantime, the DOL is enforcing the salary threshold set in its 2019 rule (roughly $35K). 4. FLSA Exemption for Domestic Service Workers (RIN 1235-AA55) In addition to the proposals above, the DOL’s Wage and Hour Division is also moving forward with a proposed rule, which was first issued in July, that would restore the ability of third-party employers to claim the FLSA’s “companionship services” exemption and the exemptions for “live-in” domestic service workers, which have been unavailable due to a regulation issued in 2013. The comment period for the new proposed rule ended on September 3. 5. Heat Safety Rule (RIN 1218-AD39) While many thought the Trump Occupational Safety and Health Administration (OSHA) would shelve the first-ever proposed national heat standard, the agency moved forward with the proposal earlier this year by opening a post-hearing comment period that ends September 30. OSHA is expected to consider feedback received during the comment period, with significant attention on requests for more flexibility and performance-oriented approaches. In the latest regulatory agenda, OSHA indicated that it intends to develop a final rule that “adequately protects workers, is feasible for employers, and is based on the best available evidence.” 6. Other Key OSHA and MSHA Proposals The DOL’s regulatory agenda also includes other workplace safety proposals from OSHA and the Mine Safety and Health Administration (MSHA). Here are some of the key items: • New Emergency Response Standards (RIN 1218-AC91). OSHA is continuing to work toward finalizing a broad emergency response standard, which was first proposed last year in an effort to overhaul and expand the fire brigade rule. OSHA is currently analyzing stakeholder feedback and plans to complete its comment analysis in November – stay tuned to see if the proposed rule ultimately gets modified or finalized as is. • Updates to the Respiratory Protection Standard (RIN 1218-AD48) . OSHA also is moving forward with a proposal that would remove medical evaluation requirements for filtering facepiece respirators and loose-fitting powered air-purifying respirators. The proposed rule was issued in July, and the comment period ended on September 2. In adding the rule to its regulatory
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