• • SB 1 - Mandatory FMLA Leave in Delaware
• • December DEFAC fiscal forecast
• • State Prevailing wage survey open for submissions
• • COVID-19 Vaccine Lawsuit Updates
• • NDAA Passes Without Harmful Labor Provisions

Senate BIll 1 - the Healthy Delaware Families Act, creates a statewide paid family and medical leave insurance program. Delaware employers will pay .8% of total payroll into the insurance program and it will allow for a 50 % employer and 50 % employee contribution model. Delaware employees can access up to 12 weeks of paid family and medical leave through the State's paid leave trust fund for a qualifying event, including for the following: (1) To address a worker's own serious health condition (2) To care for a family member with a serious health condition. (3) To bond with a new child. (4) To handle safety matters for victims of domestic violence. (5) To address the impact of a family member's military deployment.

Only nine other states and Washington D.C. have passed paid family and medical leave policy. California passed their policy in 2002 followed by New Jersey (2009), Rhode Island (2013), New York (2016), Washington D.C. (2017), Washington (2017), Massachusetts (2018) Connecticut (2019), Oregon (2019), and Colorado (2020). Three of those states (CT, OR, and CO) policies will not begin until on or after January 2022. For almost 30 years only six states have passed and implemented similar policy.   ABC Delaware has serious concerns over the development and implementation of this legsilation.

ABC Delaware's official position on SB 1 can be seen by clicking here.

A copy of SB 1 is available by clicking here.  The State of Delaware fiscal note for SB 1 is available by clicking here. 

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The Delaware Financial Advisory Council (DEFAC) met today (12/20/21) to discuss the fiscal forecasts for FY22 and FY23. This was the second meeting of the fiscal year. Since the October DEFAC meeting, the FY23 appropriation limit has been increased by $264.3 million.

DE's economic outlook is expected to remain positive (largely due to vaccination rates and re-opening). DE employment is expected to grow 4.2% in FY22 and 2.6% in FY23. 

 Additional Details: DEFAC increased the revenue forecast by $123.1 million for FY22 and $136.6 million for FY23 since the October meeting (largely due to increases in Personal Income Tax and Corporate Income Tax). FY 22 expenditure projections have also decreased by $6.8 million since the October meeting. As a result of these changes, the FY23 appropriation limit is an increase of $1,175.8 million compared to the FY22 (current) budget.   

• FY22 anticipated revenues are projected to be $5,530.2 million and expenditures to be $5,092.6 million.
• The Appropriation Limit for FY23 is projected to be $5,947.3 million.
• The FY22 unencumbered cash balance is expected to be $577.1 million.

See further detail by clicking here.

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The State of Delaware Prevailing wage survey is now open for all contractors to submit their information.  This survey is used to determine the wage rates for all trades on state-funded construction projects. Only commercial and industrial projects can be submitted.  No residential projects will be accepted.  The survey requires all contractors to submit forms for each project they complete from July 1, 2021 through December 31, 2021.  Contractors will list the number of workers per trade on each job with their corresponding wage rate.  The deadline for submissions is February 8, 2022. Preliminary rates are issued by the State on February 15 with final rates issues on March 15.

For a copy of the survey instructions, please click here.

For a copy of the reporting form used to send to the state, please click here.

If you have any questions, please contact Ed Capodanno in the ABC office at ecapodanno@abcdelaware.com 

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OSHA COVID-19 Vaccination and Testing ETS

On Dec. 17, the 6th Circuit lifted the 5th Circuit's stay of the U.S. Department of Labor's Occupational Safety and Health Administration's COVID-19 Vaccination and Testing Emergency Temporary Standard.

Several emergency appeals have already been filed with Justice Kavanaugh, who will make the initial decision whether to stay the 6th Circuit's ruling (restoring the stay) pending further review.

In the meantime, OSHA has announced a delayed re-start of the ETS enforcement until Jan. 10, and they will not issue citations for noncompliance with the standard's testing requirements before Feb. 9, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard." 

It is anticipated that the Supreme Court will issue a decision well in advance of Jan. 10, possibly as early as this coming week, on whether to reinstate the stay pending further review.

Because the stay has been lifted, it is recommended that covered employers do the following:

• Continue to monitor legal developments in Newsline and the Beltway Blueprint.
• Plan for the possibility of a COVID-19 vaccination and testing mandate.
• Review your vaccination and testing policies. If you currently don't have policies, consider adopting them. Policy templates are available on the OSHA Vaccination and Testing ETS website.
• See OSHA ETS resources, which include fact sheets and FAQs. 
• Prepare for logistical challenges of testing.
• Encourage employees to get vaccinated.
• See ABC's COVID-19 vaccination toolkit.
• Follow all safety protocols as required by court-approved federal, state and local governments.

Federal Contractor COVID-19 Vaccination Mandate

On Dec. 18, the 11th Circuit kept in place the Georgia court's nationwide injunction against the federal contractor vaccination mandate. At this time, it is unclear whether the Administration will make its own emergency appeal to the Supreme Court. If they do, ABC will certainly oppose them. 

Because the possibility remains that the stay could be lifted without much notice, it is recommended that covered federal contractor employers do the following:

• Continue to monitor legal developments in Newsline and the Beltway Blueprint.
• Plan for the possibility of a COVID-19 vaccination and testing mandate
• Prepare for logistical challenges of testing.
• Encourage employees to get vaccinated.
• See ABC's COVID-19 vaccination toolkit, resources and guidance for federal contractors to keep workers safe on construction jobsites.
• Follow all safety protocols as required by court-approved federal, state and local governments.

ABC staff and counsel will continue to monitor the federal vaccine mandates legal challenges and provide any new developments. In the meantime, please contact Karen Livingston at livingston@abc.org with any questions.

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On Dec. 15, the House and Senate passed the annual National Defense Authorization Act, following negotiations to ensure passage of the bill before the end of the year. Notably, the NDAA agreement removed several harmful labor provisions opposed by ABC from the previous version of the bill passed only in the House. The provisions addressing debarment procedures for federal contractors, apprenticeship requirements and local hire mandates were stripped from the bill in an agreement between the two chambers.

ABC is pleased that the newly agreed text excludes these provisions, as it previously expressed concerns with the House-passed version of the bill in October and sent a letter with a coalition of construction and small business associations to Congress.

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Jan 27, 2022 8:30 a.m. ABC Classroom