All posts tagged regulations

New Slip, Trip, Fall Prevention Rules for General Industry

A Caucasian, female office worker climbing on a ladder trying to reach for a box on a shelf.  She wears a black outfit from top to bottom and has brown hair.  She stands on a ladder that is a bit too short and leans forward dangerously trying to retrieve the box.  The shelf has several compartments with the same box in each compartment.  There is a wall and large glass windows on the left, behind her.  There is a white ceiling above her.  The floor of the office is out of view.

Federal OSHA implemented a new rule on Jan. 17 that is aimed at reducing slip, trip and fall hazards in the workplace.

The revisions are aimed at tackling one of the main causes of worker deaths and injuries in American workplaces by applying rules designed for the construction and manufacturing sectors to other general industries.

They add requirements for personal fall protection systems and eliminate existing mandates to use guardrails as a primary fall protection method. They also allow employers to choose from accepted fall protection systems which type they want to use.

The new standard will prevent some 30 workplace deaths and more than 5,800 injuries every year, OSHA says.

While the rules will have little impact on construction and manufacturing, management in other industries needs to bone up on the rules to ensure companies are in compliance.

The most significant update to the rules allows employers to choose the fall protection system that is most effective for them and based on a variety of acceptable options, including the use of personal fall protection systems.

The agency has allowed the use of personal fall protection systems in construction since 1994, and the final rule adopts similar requirements for general industry.

The final rule also allows employers to:

  • Use rope descent systems up to 300 feet above a lower level.
  • Prohibit the use of body belts as part of a personal fall arrest system.
  • Require worker training on personal fall protection systems and other equipment designed for falls.

 

OSHA says it tried to align fall protection requirements for general industry “as much as possible” with its requirements for construction because many employers perform both types of activities.

The final rule for general industry updates requirements for ladders, stairs, dockboards, and fall and falling object protection.

 

Key provisions

Fall protection

An employer’s obligation to provide fall protection is triggered when employees work at least four feet above a lower level.

The final rule requires employers to select one or more of these options, depending on the particular situation or activity:

  • Guardrail system
  • Safety net system
  • Personal fall arrest system (body belts now prohibited)
  • Positioning system
  • Travel restraint system
  • Ladder safety system (does not include cages or wells)
  • Handrails
  • Designated areas (only permitted on low-slope roofs)

 

The rule establishes fall protection options and other requirements for some specific situations like hoist areas, runways, wall openings, repair pits, and stairways.

 

Ladder safety

The final rule sets out general ladder safety requirements applicable to fixed ladders, portable ladders, and mobile ladder stands and platforms.

Employers must ensure that:

  • Ladders are capable of supporting at least the maximum intended load, i.e., the total weight and force of anticipated employees and equipment or other materials.
  • Mobile ladder stands and platforms are capable of supporting four times the maximum intended load.

 

Ladders must be inspected before initial use during a work shift, and as necessary, to identify visible defects that could cause worker injuries.

 

Training

Employers must ensure training of workers who use personal fall protection or work in dangerous circumstances, including working on loading docks. Workers must be trained by a “qualified person,” and the training must be understandable to employees and cover:

  • Identification of fall hazards.
  • Proper use of personal fall protection systems.
  • Maintenance, inspection, and storage of equipment or systems used for fall protection.

 

Employers must also ensure the retraining of workers when they have reason to believe workers lack the required comprehension and skill.

What Does President Trump’s Executive Order on ACA Mean?

Worker repairing  an engine rotor winding of copper wire.

Donald Trump’s first act after assuming the presidency was to sign an executive order that authorizes federal agencies to scale back as many parts of the Affordable Care Act as possible within the confines of the law.

The executive order does not abolish the landmark legislation, but sets the stage for agencies to act immediately on regulations that are deemed overly burdensome. The agencies, particularly the Department of Treasury and the Department of Health and Human Services (HHS), will have wide latitude in making regulatory changes thanks to the broad scope of the order.

But don’t expect immediate changes in the law. Regulations cannot be rewritten, amended or replaced without going through the rule-making process, which includes notice and comment periods. That can take months, or sometimes years.

Another reason you should not expect immediate change is that the order specifically states that agencies can act only “to the maximum extent permitted by law.”

The order came on the heels of the House of Representatives approving a budget blueprint that will allow Republicans to repeal major provisions of the ACA without the threat of a Democratic filibuster in the Senate. But that action can only undo parts of the law that have an effect on the federal budget and they would need some cooperation from Democrats to repeal other parts and forge a replacement.

That means that most of the laws and regulations governing employer plans will likely stay in place for the moment, although it’s unclear for how long.

Trump has been on record saying that the repeal of the law should not take place until a replacement plan is also in place, in order to avoid creating disruptions in the market. He also said that everyone in the United States would be covered.

Here are some of the more relevant passages of the executive order:

“…it is imperative for the executive branch to ensure that the law is being efficiently implemented, take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act, and prepare to afford the States more flexibility and control to create a more free and open healthcare market.”

It also said the HHS secretary and other agency heads “shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision… that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.”

As mentioned, the process for making regulations takes time. Proposed regulations have to be drawn up and they have to go out for public comment, including holding hearings so that all sides can argue for or against the changes or recommend adding more changes.

Adding more confusion and concern, Trump senior adviser Kellyanne Conway said that the president may stop enforcing the law’s tax penalty against people who don’t buy insurance. But that move alone could snowball into an ugly scenario where more healthy individuals bale out of their insurance policies, which in turn would likely lead to insurers abandoning the public insurance exchanges.

She said that he would consider repealing the employer mandate quickly, as well. But that may be not be legal as the individual and employer mandates are explicit provisions of the law passed by Congress, and they cannot be overridden by the executive branch.

OSHA Sets Limits on Drug Testing Injured Workers

drug test

Employers are not allowed to have a blanket policy of requiring drug and alcohol tests after a workplace injury as it may discourage injury reporting, the U.S. Occupational Safety and Health Administration has said in an interpretation letter.

It issued the letter in response to a company’s blanket policy after some intoxicated workers had been injured on the job, and it comes as a new OSHA regulation on post-injury testing is slated to take effect at the start of 2017.

These recent actions should spur any employer with a policy of testing its workers post-accident to revisit its rules so they don’t run afoul of OSHA’s regulations.

OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” rule does not bar employers from drug or alcohol testing its workers, but it does prohibit companies from using such testing or the threat of it as a form of retaliation against employees who report injuries. These new rules were published in May 2016 and will take effect on Jan. 1, 2017.

However, the rules specifically point out that if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.

With this new rule the agency is likely to take a hard stance on mandatory post-injury drug testing without a compelling reason.

It is unclear what will happen to employers who enforce post-incident testing policies that OSHA deems unreasonable, although several experts say they expect the agency will attempt to cite employers.

The rule will likely have far-reaching effects considering that 56% of U.S. manufacturers had such policies, according to a 2012 study by the Government Accountability Office. That same study found that these policies “may discourage workers from reporting injuries and illnesses.”

OSHA says in the rule that employer policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident and for which the test can accurately identify impairment caused by drug use, according to the final rule.

Examples of instances that OSHA says would not be reasonable to conduct a drug test include:

  • An employee who reports a bee sting.
  • A repetitive strain injury.
  • An injury caused by a lack of machine guarding, or by a machine or tool malfunction.

 

Under the rule, employers do not have to specifically suspect drug and/or alcohol use before testing, but there should be a reasonable possibility that such use by the reporting employee contributed to the reported injury or illness for the employer to mandate the testing.

The probable cause for a drug test would need to be based on observation and a good-faith belief that an employee is under the influence of drugs or alcohol. Such observations should be made by two people trained to spot such impairments and should be documented in writing

Employment law attorneys recommend that all employers look at their current policy for post-injury drug and alcohol testing, how that policy is communicated to employees, and what kind of feedback they had when the policy was put into place.

FMLA, FLSA Lawsuits Surge, Exposing Employers to Large Awards

lawsuit

The number of employee lawsuits against employers for Family Medical Leave Act (FMLA) and wage and hour violations has skyrocketed in the last five years and your firm could be the next target even for a small misstep, which can be costly.

The Department of Labor has increased its budget and the number of investigators pursuing employers who violate the Fair Labor Standards Act (FLSA), which covers wage and hour complaints, including exempt and non-exempt employee violations, overtime violations and similar issues.

Employment law attorneys say that the surge in FMLA complaints is a result of more people knowing about the law as the DOL has expanded its reach and publicized the act in press releases about actions it has taken against various employers.

Also, they say, the term “serious health condition” is broadly defined, making it easy for employees to satisfy.

Here we take a look at the problem and what you can do to avoid being sued.

 

FLSA

Wage and hour lawsuits are typically filed under the Fair Labor Standards Act, and they’ve been creeping up, a trend employment lawyers attribute to more people working from home and technology, which has blurred the lines between when workers are on or off the clock.

 

FLSA cases filed:

Fiscal 2015: 8,160

Fiscal 2014: 7,500

 

Notable FLSA settlements from last decade:

Walgreens – $23 million

Wells Fargo – $15 million

Roto-Rooter – $14.2 million

 

What you need to know:

  • There are four main areas you need to be concerned with: minimum wage, overtime pay, record-keeping and youth employment.
  • Make sure you properly classify your employees as non-exempt or exempt (the minimum salary to be classified as exempt is currently $47,476 a year).
  • There are six exempt positions: executive, administrative, learned professional, creative professional, computer professional and outside sales staff.
  • Track exempt employees’ hours just in case.
  • Compute overtime properly.
  • Telecommuting can expose you to FLSA liability when employees work or send work-related e-mails outside normal working hours.
  • Employees must be compensated for time spent answering e-mails during off hours, including vacation.

 

FMLA

Qualifying reasons for FMLA leave, according to the DOL, include: birth of a child; a serious health condition that makes the employee unable to perform their work functions; and to care for a spouse, child or parent with a serious health condition.

The rapid rise in FMLA lawsuits is a direct result of the law becoming increasingly complex for employers to navigate, and its increased enforcement. The number of FMLA cases filed last year hit 1,108, almost a fourfold increase from the 280 that were filed in 2012.

 

FLMA cases filed:

2014: 1,108

2013: 877

 

Notable settlements or awards:

Staples Inc. – $275,000

Solvay Chemical – $1.5 million

Christ Hospital and Medical Center – $11.6 million

 

What you need to know

  • Post and distribute information about employees’ FMLA rights and include it in your employee handbook.
  • Don’t retaliate against someone seeking FMLA leave.
  • Develop an internal process for employees to use when applying for FMLA leave.
  • Make sure managers and supervisors apply your FMLA process consistently.
  • Be careful to balance any pushback against the employee, but you have the right to ask for more information from the employee and their doctor. And you can monitor the use of FMLA days.

Top 10 Laws, Regulations Affecting You in 2016 (Part 2)

law-books_1

This is part 2 of our blog on new laws and regulations that can affect your business in 2016.

 

  1. Family leave expanded a little

A school activities law has expanded the right of employees to take protected time off from work when searching for a school or childcare provider.

The law, which applies to employers with 25 or more employees, requires employers to allow an employee to use eight hours in a calendar month, with a total of 40 hours in a calendar year, to find a school or a licensed childcare provider and to enroll or re-enroll a child, as well as time off to address childcare provider or school emergencies.

 

  1. Inappropriate use of E-Verify

Effective Jan. 1, employers are barred from using the E-Verify system to check the work eligibility status of an existing employee or an applicant who has not received an offer of employment, as required by federal law, or as a condition of receiving federal funds.

 

  1. Stiffer workplace safety penalties

Federal OSHA fines will increase for the first time in 25 years, with fines almost doubling from current levels.

The Federal Civil Penalties Inflation Adjustment Act of 1990 exempted OSHA from increasing its penalties to account for inflation. The new budget, signed into law on Nov. 2 by President Barack Obama, contains an amendment that strikes the exemption.

Now, OSHA is required to issue an interim final rule increasing its penalties to account for current inflation levels, which would raise proposed fines by about 80%.

This would mean the maximum penalty for a willful violation would rise to about $127,000 from the current $70,000. The adjustment must occur before Aug. 1, 2016. In subsequent years, OSHA also will be allowed to adjust its penalty levels based on inflation.

 

  1. OSHA’s new filing requirements

OSHA is expected to roll out a new rule that requires employers with 250 or more employees to electronically submit injury and illness records to OSHA on a quarterly basis. Also, some smaller employers will be required to electronically submit their OSHA Form 300A, which summarizes their annual injury and illness data, on an annual basis.

 

  1. Paid sick leave

This law actually took effect on July 1, 2015 and new amendments took effect on July 13. Under the law, California employees are entitled to one hour of sick leave for every 30 hours worked.

The changes included clarifying who is a covered worker; alternative methods of accruing paid sick leave, other than one hour for every 30 hours worked; clarifying protections for employers that already provided paid sick leave or paid time off before Jan. 1, 2015; and providing alternative methods for paying employees who use paid sick leave.

Top 10 Laws and Regulations Affecting Business in 2016 (Part 1)

Top 10 gold

AS WITH every New Year, businesses are faced with a slew of new laws and regulations. We’ve condensed them into a list of the top 10 most likely to affect your operations.

 

  1. New teeth to gender equal pay laws

A new state law adds teeth to the laws on gender pay equality.

Before SB 358, employees seeking to prove pay discrimination had to demonstrate that they are not paid at the same rate as someone of the opposite sex at the same establishment for “equal work.”

Under the new law, the requirement of “same establishment” has been deleted, and the employee need only show he or she is not being paid at the same rate for “substantially similar work.”

Substantially similar work means a composite of skill, effort and responsibility, performed under similar working conditions.

Employment law attorneys say the employer has the burden to affirmatively demonstrate the pay difference being complained about is based on any or all of these specific factors:

  • A seniority system,
  • A merit system,
  • A system that measures earnings by quality or quantity of production, or
  • Another factor, such as education, training or experience.

 

  1. Minimum wage increase

On Jan. 1, the state minimum wage increased to $10 an hour, the last of two incremental increases since legislation was passed in 2013. The first came on July 1, 2014, which moved the rate up to $9 an hour, where it has been until now.

 

  1. Employer mandate part II

At the end of 2015, the Affordable Care Act reprieve for business with 50 to 99 full-time or full-time equivalent employees ends.

Employers of this size are required to provide health insurance to at least 95% of their full-time employees and dependents up to age 26 starting this year.

For employers who don’t provide coverage, the fee is $2,000 per full-time employee (minus the first 30 full-time employees).

Companies with 100 or more full-time employees were required to cover their workers, starting in 2015.

 

  1. Health coverage reporting

Starting in 2016, employers with 50 or more full-time or full-time equivalent employees are required to make additional filings with the IRS, as well as supply their staff with forms.

Applicable large employers (with 50 or more full-time and full-time equivalent employees in the preceding calendar year) will use Form 1094-C and Form 1095-C to satisfy reporting requirements.

If filed on paper, these forms must be put in the mail no later than Feb. 28. If filing is done electronically, the due date is March 31.

You must provide 1095-C to your employees before the end of January, along with their W-2 forms

 

  1. Leeway to avoid frivolous lawsuits

AB 1506 gives employers 33 days to fix technical violations on an itemized wage statement before an employee can pursue civil litigation under the Private Attorneys General Act.

The California Chamber of Commerce championed the bill, which took effect on Oct. 2, 2015, saying it will greatly reduce frivolous litigation over an issue for which “injury” is hard to prove.

 

You can find out about the next five laws in our Thursday blog entry.

ACA Auto-enroll Requirement Repealed

openenroll

The Affordable Care Act requirement that large employers automatically enroll in a group health plan any employees that don’t respond when asked to choose a plan, has been repealed

The change came after the employer community had lobbied to have the provision repealed because of the lack of clarity in the law, particularly about how much discretion employers would have in choosing a plan for those workers.

Originally the ACA amended the Fair Labor Standards Act by adding a new section requiring employers with more than 200 full-time employees to automatically enroll new full-time employees in the employer’s health benefits plans and continue enrollment of current employees.

The enforcement of this section was pending regulations by the Department of Labor (DOL).

But, in November 2015, President Obama signed the Bipartisan Budget Act of 2015, which in small part repealed the auto-enrollment requirement.

The repeal does not bar employers from auto-enrollment. They may choose to voluntarily continue with automatic enrollment options, such as default or negative elections, but there is no obligation to do so.

Employers may still decide to use “default” or “negative” elections for enrolling employees into health plan coverage or certain other benefits. Under a default or negative enrollment arrangement, an otherwise eligible employee will be deemed to have elected a certain type and level of coverage, unless they timely return a written waiver of that coverage.

The Internal Revenue Service issued regulations in 2007 approving this approach. In fact, this same approach can also be used with health savings account contributions made under a cafeteria plan.

Under Section 125 of the Revenue Code, employers that implement default or negative elections must provide notice to employees about the coverage and cost, and provide the opportunity to opt out of the arrangement.

In many cases, negative or default elections will involve payroll deductions made without an affirmative election by employees to pay for the premiums with their wages.

Some state wage-withholding laws, however, have an express requirement that there be an affirmative election by the employee before any deductions may be made. But, the DOL has taken the position that in this context such wage-withholding laws are preempted by ERISA.

That said, if you do want to still use auto-enroll, you should tread carefully as the result could create a dispute with one of your staff. Fallout could include a run-in with the state labor commissioner, or in the worst-case scenario the threat of a lawsuit.

Before you go ahead with auto-enroll, please consult us or your legal counsel.