OSHA Touts Fall Prevention Week in September

Mark your calendar. The annual construction fall prevention week is nearing.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced Thursday that the 7th annual National Stand-Down to Prevent Falls in Construction has been rescheduled for September 14-18, 2020. While OSHA postponed the event earlier this year due to the coronavirus pandemic, the agency continues to encourage employers to promote fall safety virtually or while employing social distancing practices among small groups.

OSHA is partnering with other safety organizations in 2020 to encourage employers to provide safety demonstrations on fall protection equipment, conduct talks regarding fall-related hazards, safety policies, goals and expectations, and promote the event by using the #StandDown4Safety on social media.

“This national initiative brings much needed attention to falls, which continue to be the leading cause of fatalities in construction,” said Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “Since OSHA began doing fall prevention stand-down events six years ago, nearly 10 million workers have been reached by our message that falls are preventable. These efforts have been successful in raising awareness of the recognition, evaluation, and control of fall hazards.”

Extensive resources are available on OSHA’s Fall Prevention Stand-Down webpage at http://www.osha.gov/StopFallsStandDown and are presented in various languages, including English, Spanish, Russian, and Portuguese. Resources include:

• A brief video entitled “5 Ways to Prevent Workplace Falls,” which encourages employers to educate and train workers on fall protection equipment;
• A series of fall prevention publications, with an emphasis on construction, and fall prevention videos;
• OSHA’s Fall Prevention Training Guide, which provides a lesson plan for employers, including several Toolbox Talks; and
• Guidance on ladder and scaffolding safety.

Employers are also encouraged to provide feedback after their events, and obtain a personalized certificate of participation.

The national safety stand-down is part of OSHA’s fall prevention campaign, and was developed in partnership with the National Institute for Occupational Safety and Health, National Occupational Research Agenda, and The Center for Construction Research and Training.

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.

Systemic Bias Preventing Promotions to Rank Positions in D.C. Suburb, Minority Officers Allege

Call this one Black and Hispanic Officers Matter.

Black and Hispanic police officers in the Prince George’s County, Maryland, Police Department have had it with being stuck in place. In a letter to interim chief Hector Velez on July 13, minority officers complained of  systemic discrimination within the force, and immediately called on the department to fill empty jobs with minority officers who have already qualified for rank promotions.

The promotions sought are to sergeant, lieutenant, or captain. To qualify for promotion, officers have to take tests administered biannually. Officers who pass the written and oral exam are placed on a list of people who are eligible for a promotion in rank when positions become available.

The minority officer’s letter complained that the department leadership disproportionately promotes the white officers from that list. Per department policy, the list of eligible officers expires two months before the next exam.

This year’s test was cancelled because of the coronavirus pandemic, but there are still positions at every rank that need to be filled, said Lawrence Holtzman, the attorney for the minority officers.

Prince George’s County is a suburb of Washington, D.C.

EEOC Lifts Suspension on Charge Closings

Check your mail box in coming weeks if you have a charge pending with the EEOC.

The U.S. Equal Employment Opportunity Commission (EEOC) announced Monday that it will begin issuing charge closure documents that were suspended because of the COVID-19 pandemic.

The EEOC has continued enforcing the nation’s employment non-discrimination laws during the COVID-19 pandemic while ensuring that all of our activities are consistent with public health guidelines. On March 21, 2020, in response to the COVID-19 pandemic, the EEOC temporarily suspended the issuance of charge closure documents unless a charging party requested them.  Recognizing that further delays in issuing charge closure documents could negatively impact both parties’ ability to protect and exercise their rights effectively, the EEOC is resuming its issuance of these documents.

EEOC managers and supervisors have started reviewing charge resolution recommendations and the EEOC will begin issuing Notices of Right to Sue (Notices) both for charges that were held in suspense, as well as for charge resolutions that occur on and after Monday, August 3, 2020.  The Notices held in suspense will be issued over the course of the next six to eight weeks beginning with those that have been in suspense the longest.  All Notices will be issued by mail.

The Department of Justice, which issues Notices in investigations involving state and local governments, referred to them by the EEOC, is also resuming the issuance of Notices today.

Once a charging party receives a Notice, a lawsuit must be filed within 90 days of their receipt of that notice. This deadline is set by law and cannot be changed by the EEOC. A charging party must file a lawsuit within the established timeframe or may be prevented from going forward with the lawsuit.

Information about reaching an EEOC field office is available by visiting the following link https://www.eeoc.gov/field/index.cfm.

Illegal Opioid Use not Protected Under ADA; Treatment is, Says the EEOC in New Guidance

Don’t expect ADA protection if you are an illegal user of opioids, but do expect it if you are in treatment for opioid addiction.

The intersection of disability bias law and opioid use and treatment is the subject of new guidance from the EEOC.

The U.S. Equal Employment Opportunity Commission (EEOC) yesterday released two technical assistance documents that address concerns about the employment provisions of the Americans with Disabilities Act (ADA) and the opioid epidemic.

“Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” while making clear that current illegal drug use is not a covered disability, clarifies that individuals who are lawfully using opioid medication, are in treatment for opioid addiction and are receiving Medication Assisted Treatment (MAT), or have recovered from their addiction, are protected from disability discrimination. In addition, the document answers questions about reasonable accommodations that may be available to employees who currently legally use opioids, as well as what to do if an employer has concerns about the employee’s ability to safely perform his or her job.

The second document, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed” informs health care providers about their patients’ legal rights in the workplace. Medical providers are often key participants in the interactive process between employers and workers as employers seek to understand the employee’s condition and potential need for reasonable accommodation. In addition to describing the coverage limits under the ADA, the document provides guidance to health care workers seeking to provide documentation of covered disabilities on behalf of their patients.

The increase of opioid use and abuse in recent years poses unique challenges to the workplace. These documents aim to provide clarity to the public regarding existing legal requirements under the law.

Hotel Ignored Harassment, Now Must Pay Up in EEOC Settlement in Case Involving Housekeeper

This hotel turned a blind eye to sexual harassment going on right under its nose.

The DoubleTree Hotel in Jefferson City, Mo. will pay $45,000 and furnish other relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, an operator of the DoubleTree Hotel in Jefferson City violated federal law when it allowed a male room inspector to sexually harass a female housekeeper. Specifically, the EEOC alleges that Vinca Enterprises, Inc., which operates this DoubleTree Hotel in Missouri’s capital city, failed to stop the room inspector from regularly making offensive sexual comments and engaging in unwanted physical contact with a female house­keeper.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and retaliation for reporting it. The EEOC’s suit filed in U.S. District Court for the Western District of Missouri (Equal Employment Opportunity Commission v. Vinca Enterprises, Inc., Civil Action No. 2:20-cv-04021-NKL) alleges that although management and an owner were aware of the inspector’s unwelcome comments and behavior, Vinca failed to investigate or take appropriate action to stop the unlawful harassment and protect the employee.

The two-year consent decree settling the suit, entered by Judge Nanette K. Laughrey, requires Vinca Enterprises to pay compensatory damages to the housekeeper. In addition, Vinca Enterprises will take steps to prevent future discrimination and harassment against employees. Vinca will hire a consultant to assess workplace risk factors associated with sexual harassment; report the consultant’s findings to the EEOC; implement stronger policies and procedures prohibiting sexual harassment and discrimination; provide all employees with and clear guidance on sexual harassment; establish investigation procedures; and report sexual harassment complaints to the EEOC.

“Employers are responsible for preventing workplace harassment. Unfortunately, housekeeping employees at hotels are particularly vulnerable to such harassment and often believe they have no recourse,” said Andrea G. Baran, the EEOC’s Regional Attorney in St. Louis. “Sexual harassment is unlawful and bad for business.”

L. Jack Vasquez, director of the EEOC’s St. Louis District office, said, “An ounce of prevention is worth a pound of cure. The EEOC is committed to preventing sexual harassment in the workplace. But when harassment does occur, we encourage affected employees to report the harassment to their employers and, if necessary, to the EEOC to ensure the unlawful conduct does not continue.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination, including sexual harassment. The St. Louis District office oversees Missouri, Kansas, Nebraska, Oklahoma and a portion of southern Illinois.

Ohio Roofing Contractor Dinged $148K by OSHA For Inadequate Fall Protection at Three Locations

This home builder fell down on the job–and is paying the price.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Jerry Turnbaugh–a roofing contractor based in Dublin, Ohio–for exposing employees to falls at three separate residential home sites in Pickerington, Ohio. Turnbaugh faces penalties of $148,430 for five willful safety violations.

OSHA opened all three inspections under the local emphasis program for falls. On May 7, 2020, inspectors observed employees working on a residential roof without adequate fall protection. On June 3, 2020, and June 22, 2020, inspectors again observed company crews exposed to fall hazards while working on separate residential home sites. OSHA cited the company for failing to provide appropriate fall protection, train employees to recognize and minimize fall hazards, and develop safety programs.

“A contractor places workers’ lives at risk by allowing them to work at dangerous heights without proper fall protection,” said Acting OSHA Columbus Area Director David Wilson. “Falls are consistently one of OSHA’s most commonly cited hazards. With proper training and appropriate protection, these injuries can be prevented.”

OSHA’s Fall Protection webpage provides information on what employers can do to reduce falls and on appropriate fall protection systems for roofing workers.

“The company has 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

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 https://www.osha.gov.

Transportation Union Coalition Head Pleads for Mandatory Mask Wearing Rule for All Passengers

Transportation workers have to wear marks during the coronavirus. Shouldn’t passengers have to also?

Yes, says the Transportation Trades Department, a coalition of 33 labor unions representing transportation workers. Guidance on wearing masks isn’t enough; the government needs to mandate them, coalition president Larry Willis wrote in a petition filed last Monday with the U.S. Department of Transportation.

“The regulation should require that passengers wear masks covering the nose and mouth while on board buses, trains, airplanes, and passenger vessels, as well as in boarding areas and associated facilities including airports and stations,” Willis wrote to Transportation Secretary Elaine Chao.

Willis also wants the regulation to say that “a transportation provider has an obligation to refuse to transport any passenger who is unwilling to comply for reasons unrelated to a disability that would prevent them from doing so.”

Willis said that every union in the coalition has had members fall ill and die from the coronoavirus.

It will be an uphill battle to persuade the DOT to enact a mandatory mask rule. So far it has been willing to waive existing safety rules at the request of industry groups to ease the transportation of freight on trucks, trains, and airplanes. But Secretary Chao in general doesn’t like the idea of writing new rules in response to the pandemic, fearing they would be difficult to undo once the virus passes.

Instead, Chao supports guidance from the Center for Disease Control and Prevention that passengers on public transportation should weak masks.

The local response in many large cities has been more aggressive. Metro officials in the Washington, D.C. area require passengers on subways and buses to wear masks and in New York City they are mandatory on subways, buses, ferries, and taxies.

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Penalties Affirmed Against Hardwood Floor Maker That Lied About Abating Safety Violations

Bad enough to violate workplace safety rules; worse to lie about correcting them.

An administrative law judge with the independent Occupational Safety and Health Review Commission has upheld citations and penalties from the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) against Timberline Hardwood Floors LLC, a custom hardwood-flooring manufacturer that falsely claimed to have corrected previously cited hazards. The judge’s decision also orders the company to pay $166,265 in penalties for all violations.

In 2012, OSHA cited Timberline’s predecessor entity, Timberline Hardwood Dimensions Inc., for failing to train forklift operators adequately, and develop and implement lockout/tagout, hearing conservation and chemical hazard communication programs at the Fulton, New York, plant. At that time, Thomas Vavra, a co-owner of both the predecessor and the current company, signed abatement certifications declaring the company had corrected those violations.

In 2018, an OSHA inspection found the company had not corrected the violations and the abatement claim was false. OSHA cited Timberline Hardwood Floors LLC for willful violations for those uncorrected hazards. Timberline contested the citations to the review commission. The judge issued a decision on July 9, 2020, affirming each of the willful citations, and seven serious citations from the 2018 inspection for violations including a locked emergency exit, unguarded machines and several electrical hazards.

“Employers have a duty to take effective actions to correct hazards and prevent their recurrence, and provide truthful information as to hazard abatement,” said OSHA Regional Administrator Richard Mendelson in New York.

“The U.S. Department of Labor pursues appropriate legal actions to ensure that employers comply with the law, including when they refuse to correct workplace hazards that expose their employees to potentially fatal or disabling injuries,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York.

OSHA’s Syracuse Area Office conducted the inspection. Senior Trial Attorney Susan Jacobs of the regional Office of the Solicitor in New York litigated the case for OSHA.

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 http://www.osha.gov.

$75K Payment Settles EEOC Suit Against UPS Freight Over Iffy Temporary Assignment Policy

Final terms were entered this week in a settlement of an ADA suit against UPS Freight.

A federal judge in the U.S. District Court for District of Kansas entered an order Wednesday formalizing a settlement resolving the final dispute between UPS Freight and the U.S. Equal Employment Opportunity Commission (EEOC) in a three-year old lawsuit.

The EEOC filed suit in August 2017 (Equal Employment Opportunity Commission v. UPS Ground Freight, Inc., Civil Action No. 2:17-cv- 02453) under the Americans with Disabilities Act (ADA). According to the suit, Thomas Diebold worked as a road driver for UPS Freight from 2006 until his retirement in 2015, at its Service Center in Kansas City, Kansas. After suffering a minor stroke in 2013, Diebold sought temporary non-driving work. But company policy at the time allowed such reassignments only for drivers whose licenses were suspended for nonmedical reasons. In the suit, the EEOC also challenged a later collective bargaining agreement (CBA) between UPS Freight and the Teamsters, under which drivers with disabilities could be reassigned to non-driving work for medical reasons but were paid 10% less than drivers reassigned for non-medical reasons, such as DWI convictions.

In July 2018, the EEOC obtained an order from Chief Judge Julie A. Robinson that UPS Freight’s then-existing CBA violated the ADA. UPS Freight and the union then entered into a new CBA that eliminated the unlawful disparate pay clause. Today’s settlement, approved by Judge Robinson, resolves the EEOC’s claim for damages for Mr. Diebold. UPS Freight will pay him $75,000 for wage and non-wage damages.

Grant Doty, senior trial attorney assigned to this case, said, “The amicable resolution to this case allows both parties to finally move on.”

Andrea G. Baran, EEOC’s regional attorney in St. Louis said, “Employers need to know that disparate treatment of qualified, disabled workers – whether because of a company’s policy or a collective bargaining agreement – is prohibited under the ADA.”

“Workplace policies that discriminate against qualified individuals with disabilities are unlawful and bad business,” said L. Jack Vasquez, Jr., director of the EEOC’s St. Louis District office. “The EEOC encourages workers to report these types of practices.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois.

Handle With Care: OSHA Ups Standards for Agency Access to Employee Medical Records

Federal workplace safety officials upgraded their procedures for handling employee medical records obtained during compliance investigations.

OSHA may need to review employee medical records during a compliance inspection to determine whether an employer is in compliance with OSHA standards and regulations, or to verify that an employer has taken steps to correct existing violations. Access to employee medical records may also be necessary during inspections to determine the effectiveness of voluntary employer safety and health programs. OSHA also reviews medical records when gathering information during agency rulemaking to develop or revise occupational safety and health standards.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has revised the Rules of Agency Practice and Procedure Concerning Occupational Safety and Health Administration Access to Employee Medical Records. The rule describes internal procedures that OSHA personnel must follow when obtaining and using personally-identifiable employee medical information.

OSHA has identified and amended several provisions of the regulation in order to improve efficiency in implementing these internal procedures. The final rule:

• Transfers the approval of written medical access orders (MAOs) from the Assistant Secretary of Occupational Safety and Health to the OSHA Medical Records Officer (MRO). The MRO is responsible for determining the transfer and public disclosure of personally-identifiable employee medical information in OSHA’s possession;
• Clarifies that a written MAO does not constitute an administrative subpoena; and
• Establishes new procedures for the access and safeguarding of personally-identifiable employee medical information maintained in electronic form.

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.