OSHA Ups Civil Penalty Amounts for 2021

It just got more expensive to violate workplace safety rules.

The U.S. Department of Labor last Wednesday announced adjustments to Occupational Safety and Health Administration (OSHA) civil penalty amounts based on cost-of-living adjustments for 2021.

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. Under the Act, agencies are required to publish “catch-up” rules that adjust the level of civil monetary penalties, and make subsequent annual adjustments for inflation no later than January 15 of each year.

OSHA’s maximum penalties for serious and other-than-serious violations will increase from $13,494 per violation to $13,653 per violation. The maximum penalty for willful or repeated violations will increase from $134,937 per violation to $136,532 per violation.

Visit the OSHA Penalties page for more information. The Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2021 final rule is effective January 15, 2021, and the increased penalty levels apply to any penalties assessed after January 15, 2021.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

EEOC Updates Religious Discrimination Manual

In another close, the commission modernized its tome on religious discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC) approved revisions to EEOC’s Compliance Manual Section on Religious Discrimination (“Manual”). The Manual was approved by the Commission on January 15th by a 3-2 vote.

The updated guidance describes in what ways Title VII of the Civil Rights Act of 1964 (Title VII) protects individuals from religious discrimination in the workplace and sets forth the legal protections available to religious employers.

On Nov. 9, the Commission voted (3-2) to publish its proposed changes to the Manual for public review and input. After reviewing the public input received, the Commission made revisions to the Manual before finalizing it.

The current version of the Manual, last updated in 2008, does not reflect recent legal developments and emerging issues. Since 2008, several Supreme Court decisions, as well as the lower courts, have altered the legal landscape.  The revisions to the guidance include important updates to the discussion of protections for employees from religious discrimination in the context of reasonable accommodations and harassment. It also expands the discussion of defenses that may be available to religious employers. 

EEOC Tackles Religious Bias in Meeting Today

Clear you calendar today for an EEOC meeting on religious bias.

Because of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) will hold a remote, audio-only Commission meeting today Friday, Jan. 15 at 1:00 p.m. (Eastern Time).

In accordance with the Sunshine Act, the public may listen to the conference by following the instructions that will be posted on http://www.eeoc.gov 24 hours prior to the meeting. Closed captioning services will be available. 

The following item will be considered at the meeting: Proposed Updated Compliance Manual on Religious Discrimination.

The Commission agenda is subject to revision. A recording and transcript of the Commission meeting will be posted on www.eeoc.gov at a later date.

For additional information contact Christine Nazer, (202) 663-4191 (voice) or (800) 669-6820 (TTY).

The meeting comes on the heels of yesterday’s release of a report by the EEOC General Counsel following discussions with various stakeholders.

General Counsel’s Report Tees up EEOC for Possible Changes in Handling Religion Cases

An EEOC work group invited participants from different faiths in to discuss religious bias in the workplace– and here’s what they had to say.

The U.S. Equal Employment Opportunity Commission (EEOC) General Counsel Sharon Fast Gustafson and Commissioner Andrea Lucas yesterday issued a report on a series of dialogue sessions on religious discrimination held in November and December 2020. During these sessions, stakeholders were invited to share how the EEOC can improve its development and litigation of religious discrimination claims.

The meetings were conducted by General Counsel Gustafson’s Religious Discrimination Work Group, chaired by Assistant General Counsel Christine Lambrou Johnson. Religious leaders, advocacy groups, and nonprofits participated in four sessions of tele-meetings. Participants heard from the General Counsel and Commissioner Lucas and were invited to offer insights into EEOC efforts to prevent and remedy religious discrimination.

The Listening Session Report includes comments from participants on issues ranging from religious garb and Sabbath observance to retaliation and hostile work environment. A majority of participants expressed a desire to learn more about the law on religious discrimination and how to educate both employers and employees on how to follow it.

The General Counsel’s Listening Sessions coincided with the Commission’s posting for public comment of its updated Compliance Manual Section on Religious Discrimination. Although no comments on the guidance were solicited or received from Listening Session participants, the General Counsel encouraged participants to give their input during the public comment period, along with all other interested stakeholders.

“We thank those who participated representing a rich diversity of religions—Buddhist, Christian, Hindu, Jewish, Muslim, and Sikh to name a few,” said General Counsel Gustafson. “Participants candidly shared their experiences with religious discrimination in the workplace. We are motivated by their experiences to redouble our efforts to prevent and remedy religious discrimination in the workplace.”

Established in May 2020, the Work Group is comprised of EEOC attorneys, deputy direc­tor, investigators, data analysts, and training and outreach liaisons from various EEOC offices across the country. The Office of General Counsel is made up of 15 regional offices as well as several field offices and local offices across the nation. The General Counsel oversees and conducts the EEOC’s litigation. Her office works with the investigatory and enforcement side of the EEOC to develop cases and promote conciliation and settlement.

EEO Data Collections to Resume Soon

The window for employers to submit their demographic data to the government re-opens soon.

After delaying the opening of the 2019 EEO-1 Component 1 and the 2020 EEO-3 and 2020 EEO-5 Data Collections on May 8, 2020 in light of the COVID-19 public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) announced yesterday that the collections will open in 2021.

The EEOC will open four data collections in 2021, including the 2019 and 2020 EEO-1 Component 1 Data Collection as well as the 2020 EEO-3, 2021 EEO-4, and 2020 EEO-5 Data Collections. The collections are scheduled to open in the following months:

April 2021:                 2019 and 2020 EEO-1 Component 1 Data Collection (Private Sector Employers)

July 2021:                  2020 EEO-5 Data Collection (Public Elementary/Secondary School Districts)

August 2021:             2020 EEO-3 Data Collection (Local Referral Unions)

October 2021:            2021 EEO-4 Data Collection (State/Local Governments)

EEO (equal employment opportunity) filers should begin preparing to submit data in anticipation of these openings. The precise opening dates of the collections, as well as the new submission deadline dates, will be announced by posting a notice on the EEOC’s home page at www.eeoc.gov as well as on the new dedicated website for the agency’s EEO data collections at https://EEOCdata.org. As in previ­ous years, a notification letter will also be sent to eligible filers.

The EEO reports collect data from employers in different sectors of the workforce. The EEOC was planning to open the following EEO data collections in 2020: the 2019 EEO-1 Component 1 (Employer Information Report); the 2020 EEO-3 (Local Report); and the 2020 EEO-5 (Elementary-Secondary Staff Information Report). Recognizing the impact that the public health emergency was having on workplaces across America and the challenges that both employers and employees were facing, the EEOC delayed the collections until 2021 to allow EEO filers to be better positioned to provide accurate, valid and reliable data in a timely manner.

EEO filers can visit https://EEOCdata.org  for more information regarding updates on the data collections. When the collections open, resources to assist filers with their submissions will be available online at https://EEOCdata.org. The EEOC Filer Support Team will also be available to respond to filer inquiries and to provide additional filling assistance.

New EEOC Webpage Gets Into Weeds of Identifying, Fighting Systemic Discrimination

Everything you need to know about systemic discrimination with one click of your mouse.

The U.S. Equal Employment Opportunity Commission (EEOC) last Friday posted new information on its website explaining the use of administrative and litigation tools used to identify and pursue systemic discriminatory practices – Systemic Enforcement at the EEOC.          

“The EEOC is strongly committed to making our processes fully transparent and useful to the public,” said Chair Janet Dhillon. “Systemic enforcement is an important mechanism the Commission uses to remedy discrimination that has broad impacts on industries, professions, or geographic areas.  It is vital that the public knows how we use this tool.”

The purpose of the new webpage is to provide transparency about how the Commission approaches systemic discrimination enforcement efforts. The webpage provides background on how the Commission determined that systemic enforcement is effective, explains how the EEOC determines what is systemic discrimination, and details the process of initiating and conducting a systemic case.

EEOC Tries Again to Make Wellness Rules Stick

The EEOC is taking another stab at issuing rules for employer wellness programs.

The U.S. Equal Employment Opportunity Commission’s (EEOC) Thursday forwarded to the Federal Register its Notices of Proposed Rulemakings (NPRM) on wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).  The NPRMs have been cleared by the Office of Management and Budget and sent to the Federal Register for publication. 

Previously approved by the Commission, the proposed rules address what level of incentives employers may lawfully offer to encourage employee participation in wellness programs that require disclosure of medical information, without violating the ADA or GINA.

The NPRMs respond to a decision by the U.S. District Court for the District of Columbia that vacated a portion of EEOC’s previous ADA and GINA regulations. Although the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Patient Protection and Affordable Care Act, allows employers to offer incentives up to 30 percent of the total cost of health insurance to encourage participation in certain types of wellness programs, the ADA requires that employee participation in a wellness program that includes medical questions and exams be “voluntary.” Because the ADA and GINA do not define “voluntary,” the NPRMs propose that, in order to comply with the ADA and GINA, employers may offer no more than a de minimis incentive to encourage participation in wellness programs, with the exception of certain wellness programs that would be permitted to offer the maximum allowed incentive under the 2013 HIPAA regulations.

Unofficial versions of the NPRMs are available here:  https://www.eeoc.gov/regulations/wellness-rulemaking.  After the Federal Register publishes the proposed rules, the public will have 60 calendar days to submit comments for those comments to be considered by the Commission.  Members of the public may submit electronic comments about the proposed rules at www.regulations.gov in the rulemaking dockets RIN 3046-AB10 and RIN 3046-AB11.

EEOC Updates Charge Conciliation Procedures

By slim majorities, the EEOC came to closure on some important issues at last week’s public meeting.

The U.S. Equal Employment Opportunity Commission (EEOC) last Thursday held a remote meeting and approved the Final Rule Updating the Commission’s Conciliation Procedures, a formal opinion letter concerning Individual Coverage Health Reimbursement Arrangements under the ADEA, and the Final Rule Amending the Commission’s Official Time Regulation for the Federal Sector.

The first item the Commission considered was the Final Rule Updating the Commission’s Conciliation Procedures. Under Section 706 of Title VII of the Civil Rights Act of 1964, as amended, Congress instructed that after the Commission finds reasonable cause for any charge, “the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  In 2015, the Supreme Court addressed the Commission’s conciliation requirements in Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), noting that conciliation plays an important role in achieving Congress’s goal of ending employment discrimination. The final rule was approved by a vote of 3-2.

Despite EEOC’s efforts to promote voluntary resolutions, the agency’s conciliation efforts resolve less than half of the charges where the evidence supports a finding of discrimination. Through this rulemaking, the Commission outlines its responsibilities in the conciliation process to fulfill its Congressional mandate and to increase the effectiveness of its efforts to achieve cooperation and voluntary compliance. The final rule was approved by a vote of 3-2.

The Commissioners also considered a formal opinion letter regarding whether offering an Individual Coverage Health Reimbursement Arrangement (ICHRA) as a defined contribution gives rise to liability under the Age Discrimination in Employment Act of 1967 (ADEA).  ICHRAs are a benefit in which an employer contributes money into an account for the employee, which the employee then uses to purchase health insurance on their own.   The opinion letter concludes that ICHRAs, in which employers deposit the same dollar amount regardless of an employee’s age, do not violate the ADEA because all employees receive the same amount from the employer and the employer is not involved in the employee’s decision about which health insurance to purchase.  In addition, the letter explains that employers that choose to increase the amount deposited into an older employee’s ICHRA account in order to offset age-based increases to his/her health plan costs will not thereby violate the ADEA. The vote was 3-2 in favor of the Commission issuing a formal opinion letter. 

Finally, the Commissioners approved a Final Rule Amending the Commission’s Official Time Regulation for the Federal Sector.  The Final Rule clarifies that its official time provision for federal employees does not apply to representatives who serve in an official capacity for a labor organization. The Final Rule was approved by a vote of 3-2.

Something’s Brewing: OSHA, Ohio Beer Crafters Renew Their Pact to Improve Workplace Safety

With craft beers ubiquitous in the U.S., maybe we’ll see more such partnerships.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) and organizations representing many of Ohio’s craft brewers have renewed a two-year alliance to improve workplace safety in the industry.

The alliance includes OSHA, Ohio Craft Brewers Association, Brewers Association, Master Brewers Association of the Americas District Midwest and Ohio Bureau of Workers’ Compensation. They will continue to develop and build upon awareness and education programs on hazards in the brewing, storing, bottling, canning, packaging, handling and delivery of craft beer. Alliance members will promote the free, web-based training accessible through the Ohio Craft Brewers Alliance. Participants originally signed an alliance agreement in October 2018.

“OSHA is pleased to renew this alliance focused on sharing best practices and training and educating both employers and workers in the growing craft brewery business to operate and work safely,” said OSHA Area Director Larry Johnson in Columbus, Ohio.

Participants will share information on OSHA campaigns, including Safe + Sound, a year-round campaign to encourage workplace safety. They will also facilitate understanding of the rights of workers and the responsibilities of employers under the Occupational Safety and Health Act.

The OSHA Alliance Program fosters collaborative relationships with groups committed to worker safety and health. Alliance partners help OSHA reach targeted audiences, such as employers and workers in high-hazard industries, giving them better access to workplace safety and health tools and information.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees.OSHA’s role is to help ensure these conditions for American working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit https://www.osha.gov/.

EEOC Mediation Pilot Program Extended

The EEOC is giving itself more time to assess the efficacy of its program for mediating discrimination charges.

The U.S. Equal Employment Opportunity Commission (EEOC), yesterday announced that it was extending the pilot program that expanded opportunities to voluntarily resolve charges through mediation through Sept. 30, 2021.

“The ACT Mediation pilot has created more opportunities to resolve charges throughout an investigation, enhancing EEOC’s already successful mediation program,” said EEOC Chair Janet Dhillon.  “Feedback indicates that the pilot has been well-received, however, we need, more time to fine tune its implementation and assess its impact.”

Mediation is a voluntary, informal, and confidential way to resolve disputes with the help of a neutral mediator who is trained to help people discuss their differences.  The EEOC’s ACT (Access, Categories, Time) Mediation pilot, which began on July 6, 2020, expanded the categories of charges eligible for mediation and, generally, allowed for mediation throughout an investigation.  The pilot also expanded the use of technology to hold virtual mediations.

Through the EEOC’s mediation program, first implemented agency-wide in 1999, the agency has conducted more than 240,000 mediations, resolving over 170,000 charges and obtaining over $3 billion in benefits for aggrieved individuals.