As the year comes to an end, we would like to share with you some of the challenges we faced this past year, our wins, our losses, and our continuing battles. We know that because of the pandemic we have had to adjust to different advocating methods and the limitation of in-person events and meetings.
I do want to start off by reminding everyone that our Legislative Days for 2022 will be taking place in person in February and we are all looking forward to this. The National Association of Landscape Professionals continues to advocate on behalf of its members at the federal, state, and local level on issues such as H-2B, pesticides regulations, fertilizers, gas-to-electric lawn equipment and many more issues. Here is a recap of some of the major news we have seen this year impacting the industry.
OSHA Update
Early September, President Biden issued his COVID-19 Action Plan the “Path Out of the Pandemic.” The Executive Order issued several mandates many of which specifically involved vaccines: requiring all employers with 100+ employees to ensure their workers are vaccinated or tested weekly; requiring vaccinations for all federal workers and for millions of contractors that do business with the federal government; continuing to require masking on federal property and many more.
In November, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The ETS establishes binding requirements to protect employees of larger employers (100 or more employees) from the risk of contracting COVID-19 in the workplace. The date that employers must come into compliance is January 4, 2022.
The following are key: employers with 100 or more workers must implement a mandatory vaccination program and/or mandate weekly testing and masks for those who refuse the vaccine. Two doses of either Pfizer or the Moderna shots or one dose of Johnson & Johnson’s vaccine will be acceptable; OSHA will largely rely on complaints to investigate violations; fines for violating the vaccination rules could start at $13,653 each and go as high as $136,532 per violation if employers are found to be willfully non-compliant or repeat offenses. The amounts are in line with violations for other rules the agency enforces.
In November, OSHA Vaccine ETS was halted by the Fifth Circuit of Appeals. The Sixth Circuit was chosen at random to hear the consolidated cases through a lottery system under the procedures governing multi-district litigation. In December, The Sixth Circuit voted 2-1 in favor of OSHA’s ETS.
Here is OSHA’s statement regarding the outcome: “OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.”
In December, the Senate voted to block President Joe Biden’s vaccine mandate on private employers in a symbolic vote of 52-48. The measure is not in the Democratic-held House where it faces a tougher path to passage.
EPA Update
NALP’s Bob Mann has been appointed to EPA’s Pesticide Program Dialogue Committee. Bob Mann is the director of state & local government relations, he has been appointed to a two-year term on the Environmental Protection Agency’s (EPA) Pesticide Program Dialogue Committee (PPDC).
The PPDC is a representative federal advisory committee that meets with EPA’s Office of Pesticide Programs on a regular basis to discuss pesticide regulatory, policy, and program implementation issues. Input provided by PPDC members during meetings are taken under consideration in shaping important policy decisions involving pesticide registrations and applications. It is very important that a representative from the landscape applicator community is on this committee to help guide policy decisions.
NALP also worked closely with EPA this year providing input on the much-anticipated registration review for neonicotinoids. We anticipate new label language in a final decision sometime in 2022. Additionally, NALP worked with EPA as they continue to be bogged down with a broken Endangered Species biological evaluation process. Lastly, we look towards 2022 as registration review begins for 2-4-D and other important products as we plan to take EPA back into the field to see how the landscape responsibly uses products.
California and CARB Update
NALP spent extensive resources advocating on behalf of the industry to push back on the proposal to ban the sale of virtually all gas-powered landscape beginning with model year 2024. NALP supports this transition to Zero Emission Equipment (ZEE) but in a responsible manner, and 2024 is too quick considering ZEE has performance, cost, and infrastructure barriers for a full transition for landscape companies. Unfortunately, the California Air Resources Board (CARB) approved the 2024 timeline despite our efforts.
NALP and other industry partners in the Outdoor Power Equipment Institute (OPEI) and the California Landscape Contractors Association (CLCA) were pushing for a delay with regards to commercial/professional-grade equipment. We have been pushing for this since April and unfortunately, CARB moved forward with the proposal. The Board in acknowledgment of industry concerns will be amending the rule in a final 15-day open comment period to create an “industry task force” to review the implementation and report to the Board next year which will allow them to make any changes if needed to extend the timeline for certain industries or specific equipment beyond 2024.
NALP anticipates being part of this task force. Additionally, CARB is committed to assisting in providing additional funding for rebate programs for small businesses and NALP will continue to work with CARB on funding and implementation.
California will now have to apply to EPA for a waiver and NALP has already begun discussions with EPA with regards to our concerns. No other state or locality can ban the sale of this equipment at this time due to federal preemption pursuant to the Clean Air Act.
This issue remains a top priority for NALP, and we will continue to provide updates as we advocate on behalf of the industry for responsible policies to transition the industry to non-carbon emitting equipment.
H-2B Program Update
In late April, the Department of Homeland Security (DHS) and the Department of Labor (DOL) reached a deal to release 22,000 supplemental H-2B visas. From the 22,000 additional visas, 6,000 were set aside to go exclusively to guest workers from the Northern Triangle Central American countries (El Salvador, Guatemala, and Honduras). If the 6,000 Northern Triangle H-2B visas go unused by July 8 they would be available for returning workers from any country.
During the month of June, Rep. Cuellar (D-TX), Rep. Joyce (R-OH), Rep. Keating (D-MA), Rep Chabot (R-OH), Rep. Pingree (D-ME), and Rep. Harris (R-MD) introduced the bi-partisan Returning Worker Exception Act of 2021 (H.R. 3897). The legislation is set to provide permanent H-2B cap relief through a returning worker exception while also providing integrity measures that protect U.S. workers and foreign seasonal H-2B workers while in the United States.
In July, NALP faced plenty of battles during the Appropriations process in regard to the H-2B program. The U.S. House of Representatives Appropriations Committee marked up the FY 22 Department of Homeland Security (DHS) appropriations bill. In the last four years, we have been successful with the “may” to “shall” amendment only to have it stripped back to “may” at the eleventh hour by House and Senate leadership.
Although it seemed to all go downhill during this process, we are happy to report that we secured significant wins on the H-2B front on behalf of the landscape industry. The House Appropriations committee approved by a voice vote non-discretionary language that will compel the Biden Administration to release additional H-2B visas when a bona fide need has been demonstrated (i.e., the cap is hit).
On December 20, the Department of Homeland Security announced that they will be releasing an additional 20,000 H-2B visas for the first half of the fiscal year which begins October 1 and ends March 30. Of the 20,000, 6,500 will be carved out for Northern Triangle countries (El Salvador, Guatemala and Honduras) and also Haiti.
This is a significant win for the landscape industry and other seasonal industries that continue to face significant labor shortages. This will allow landscape companies in warmer regions that have start dates in February and March to have a chance to access this supplemental allotment. The first half was capped out on October 12, 2021. This is the first time there has been a supplemental release for the first half cap.
NALP and other members of the H-2B Workforce Coalition have been communicating with DHS about needing more supplemental visas than previous years and also that the visas need to be made available in a timely manner. NALP believes that the process that will be undertaken to release these 20,000 can be quickly replicated when the second half cap is inevitably hit in February making it very likely that we can have another 15,000 – 20,000 supplemental vias released for the second half cap (April 1 – September 30) in April when the visas are so critical for the landscape industry.
NALP is thankful for all the work our members do to help our Government Relations team.
