Listen In: OSHA, EPA to Host Virtual Public Meetings on Hazardous Chemical Handling Rules

Mark your calendars for a chance to listen in as government rulemakers discuss new rules for handling hazardous chemicals.

The U.S. Department of Labor’s Occupational Safety and Health Administration announced Friday it will participate in virtual listening sessions on June 16, 2021, and July 8, 2021 hosted by the Environmental Protection Agency.

The goals of the sessions are to solicit input from stakeholders about the EPA Risk Management Program regulation revisions since 2017 and address new priorities, as directed under Executive Order 13990: Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis. OSHA will receive comments on its Process Safety Management standard to continue coordination with EPA. The standard contains workplace safety requirements for managing processes using highly hazardous chemicals.

The listening sessions will be open to the public and take place on June 16 from 12 p.m. to 4 p.m. EDT and on July 8 from 4 p.m. to 8 p.m. EDT. Those interested in speaking must pre-register at https://www.epa.gov/rmp/forms/virtual-public-listening-sessions-risk-management-program-rule. Register to speak at the June 16 listening session by June 14. For the July 6 meeting, register to speak by July 8.

OSHA encourages public comments in writing and submit them electronically by July 15 at https://www.regulations.gov/. Comments must be identified with Docket ID No. EPA-HQ-OLEM-2021-0312. Read the Federal Register notice for more information.

Learn more about OSHA’s Process Safety Management standard. Visit EPA’s Risk Management Plan Rule webpage for more information on RMP regulations.

EEOC Clarifies What EEO Laws Allow on Covid

Just in time for the holiday weekend–and an expected surge of employees returning to work as the pandemic winds down–the EEOC issued additional guidance.

The U.S. Equal Employment Opportunity Commission (EEOC) Friday posted updated and expanded technical assistance related to the COVID-19 pandemic, addressing questions arising under the federal equal employment opportunity (EEO) laws. The EEOC also posted a new resource for job applicants and employees, explaining how federal employment discrimination laws protect workers during the pandemic. These publications are provided to help employees and employers understand their rights and responsibilities at work during the pandemic.

The expanded technical assistance provides new information about how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer offers incentives for employees to provide documentation or other confirmation of vaccination when an employee gets a vaccine in the community or from the employer or its agent. The technical assistance answers COVID-19 questions only from the perspective of the EEO laws.  Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers and employees.

“The updated technical assistance released today addresses frequently asked questions concerning vaccinations in the employment context,” said EEOC Chair Charlotte A. Burrows.  “The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy to understand, and helpful information. We will continue to address the issues that were raised at the Commission’s recent hearing on the civil rights impact of COVID-19.”

The key updates to the technical assistance are summarized below:

• Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.  Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers.  From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

The new resource for job applicants and employees provides basic information about how federal employment discrimination laws help workers who are being harassed; who need extra protection against getting sick; who are not being allowed to work; or who need a modification of their employer’s COVID-19 safety requirements.

These two publications follow an EEOC hearing on April 28 on the impact of the COVID-19 pandemic on civil rights in the workplace at which the EEOC heard from a wide range of experts. They were prepared prior to the CDC’s new guidance for fully vaccinated individuals issued on May 13, 2021, and do not specifically address that new guidance. As new developments occur, the EEOC will consider any impact they may have on EEOC’s COVID-19 technical assistance and will provide additional updates and assistance to the public as needed.

Check it Out: Mich. Store, EEOC Settle ADA Suit Over Accommodation Denial to Disabled Cashier

Compliance with ADA reasonable accommodation requests shouldn’t depend on a supervisor’s whim.

Meijer, Inc., a grocery store chain based in Grand Rapids, Mich., will pay $30,000 and provide other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced yesterday. The EEOC alleged that Meijer violated federal law by denying an employee a reasonable accommodation and demoting him to a lower-paying job because of his disability.

According to the EEOC’s lawsuit, a cashier at Meijer’s Commerce, Mich., store had been allowed to work almost exclusively in the U-Scan (self-checkout) area because of his disability for five years. A new supervisor then put him more in regular cashier lanes and the employee responded by submitting work restrictions. To accommodate his disability, the employee asked to work exclusively at the U-Scan lanes, or in the gas station or at the customer service desk. Instead, Meijer placed him in a lower-paying, part-time greeter position.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which mandates that a covered employer reasonably accommodate an employee with a disability and prohibits adverse actions such as demotions because of that disability. The EEOC filed suit in U.S. District Court for the Eastern District of Michigan (Case No. 19-cv-12332) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the monetary relief, the consent decree resolving the suit provides for injunctive relief, and training for managerial, supervisory and human resources personnel on the requirements of the ADA, as well as reporting to the EEOC any employee requests for reasonable accommodations.
    
“The ADA is clear: an employer must provide a reasonable accommodation for an employee with a disability and cannot demote the employee because of that disability,” said Dale Price, the EEOC attorney who handled the case. “The training and reporting provisions under the consent decree provide meaningful protections for Meijer employees.”

The EEOC’s Detroit Field Office is part of the Indianapolis District Office, which oversees Michigan, Indiana, Kentucky, and parts of Ohio.

EEOC: Employer, Staffing Co. Ignored Racial Harassment, Will Pay $2M to Settle Lawsuit

A passive approach by an employer and its staffing agency to racial harassment came back to haunt them.

Ryder Integrated Logistics, Inc., a Miami-based transportation and supply chain solutions company, and Orange County-based staffing agency Kimco Staffing Services, Inc. will pay $1 million each, for a total of $2 million, and provide significant injunctive relief to resolve the lawsuit alleging that the companies violated federal law by subjecting African American employees to racial discrimination, harassment and retaliation, the U.S. Equal Employment Opportunity Commission (EEOC) announced Wednesday.
 
According to the EEOC’s lawsuit, African American employees assigned by Kimco to Ryder’s Moreno Valley, Calif., facility, along with African American employees directly hired by Ryder, were subjected to ongoing and unwelcome harassment based on their race. The EEOC contends that Ryder and Kimco created a hostile working environment by allowing employees to use racial slurs and epithets towards their Black colleagues. The EEOC charged that after an African American employee complained about racial harassment, neither Ryder nor Kimco corrected the situation, instead firing the employee within days of reporting the harassment.

The EEOC’s suit also alleged that Ryder and Kimco discriminated against African American workers in the terms and conditions of employment in assignment, training, promotion, discipline and termination.  

“This case underscores the unfortunate reality that racial harassment and retaliation remain a problem in American workplaces,” said EEOC Chair Charlotte A. Burrows. “Confronting these issues is of critical importance to the EEOC and our nation.  The EEOC will continue to use outreach, education, and enforcement when necessary to ensure that employers — and staffing agencies — understand their obligation to prevent and correct unlawful harassment and ensure that workers can raise concerns without fear of reprisal.”

Racial discrimination, harassment and retaliation for complaining about it are prohibited by Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Central District of California (EEOC v. Kimco Staffing Services, Inc. and Ryder Integrated Logistics, Inc., Case No. 5:19-cv-01838-JFW-SP) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to monetary relief, Ryder Integrated Logistics will provide injunctive relief aimed at preventing workplace harassment, discrimination, and retaliation. The consent decree includes the selection of an equal employment opportunity coordinator; the creation of a centralized tracking system for race-based harassment, discrimination and retaliation complaints; the review and revision of policies prohibiting discrimination; and the distribution of those policies to all employees. Additionally, Ryder will create an internal complaint process and discrimination training for all employees.

Kimco Staffing Services has also entered into a consent decree with the EEOC, which includes providing neutral references for the claimants along with the re-hiring of the claimants who desire to return to Kimco. The company also will retain a bilingual third party EEO monitor, create and implement policies and procedures to prohibit discrimination and harassment, which will then be disseminated to all employees, establish a complaint procedure, and train all employees on discrimination and harassment.

Kimco and Ryder will both develop protocols for handling discrimination and harassment complaints raised by temporary employees on assignment.

The decrees will remain under the court’s jurisdiction for the two-year term.

“We have seen an increase in race harassment cases across industries,” said Anna Park, regional attorney for EEOC’s Los Angeles District Office. “It is very important for employers and staffing agencies to be proactive in addressing these issues. We commend Ryder and Kimco for committing to changes and for being positive change agents in addressing race issues.”

Rosa Viramontes, the EEOC’s Los Angeles District director, added, “It is important for employers and staffing agencies to realize that both entities have a responsibility to address harassment and retaliation in the workplace. Ryder and Kimco have put in place measures that will positively impact employees at both companies.”

According to its website, www.ryder.com, Ryder manages fleet, transportation and supply chain functions for over 50,000 customers. The company is headquartered in Miami. According to Kimco’s website, www.kimco.com, the Orange County, Calif.-based staffing company has helped more than 212,000 people find employment since 1986.

OSHA to Update Handrail, Stair Rail Safety Rules

Did you know the federal government has a safety standard for walking-working surfaces?

Neither did I, until I read this today.

The U.S. Department of Labor’s Occupational Safety and Health Administration is proposing updates in the handrail and stair rail system requirements for its general industry, Walking-Working Surfaces standard.

OSHA published a final rule on walking-working surfaces and personal protective equipment in November 2016 that updated requirements for slip, trip and fall hazards. The agency has received numerous questions asking when handrails are required, and about the height requirements for handrails on stairs and stair rail systems.

This proposed rule does not reopen for discussion any of the regulatory decisions made in the 2016 rulemaking. It focuses solely on clarifying some of the requirements for handrails and stair rail systems finalized in 2016, and on providing flexibility in the transition to OSHA’s newer requirements.

Follow the online instructions at the Federal eRulemaking portal to submit comments. Submit comments by July 19. For more information, read the Federal Register notice.

Learn more about OSHA’s General Industry Walking-Working Surfaces and Fall Protection standards

Healing Touch: $250K Payment Ends EEOC Suit Alleging Senior Care Firm Allowed Harassment

Allowing your clients to harass your workers is just as bad as letting your managers get away with it.

Joyvida, LLC, which operates under the name Amada Senior Care and provides personal care services in the Colorado Springs, Denver and Pueblo areas, will pay $250,000 and commit to significant changes in its business practices to end a sexual harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Monday.

The EEOC filed a complaint against the company in federal district court in Colorado in 2018. The EEOC charged that Amada violated Title VII of the Civil Rights Act of 1964 by failing to respond appropriately after female caregivers reported they were being harassed while working for Amada clients and by retaliating against caregivers who reported such harassment.

The EEOC specifically alleged that Amada caregivers who provided senior care services in the home of two Amada clients in 2014 were verbally and physically harassed by the clients’ adult son. According to the Complaint, this harassment included comments about the caregivers’ bodies, non-consensual touching, physically cornering the caregivers, exposing his genitals, and pressing his genitals against them.

The EEOC asserted that even after the caregivers reported this harassment to the company’s owner, Ken Jenson, and other managers, the company not only failed to prevent continued harassment, but also retaliated against the employees who had reported it. The retaliation included cutting care¬givers’ hours, firing one caregiver, and allowing work conditions so hostile that at least one caregiver was forced to quit, according to the EEOC’s allegations. In addition to the two caregivers originally named in the suit, the agency also sought relief for other women who experienced sexual harassment by Amada’s clients and retaliation by Amada.

Under the three-and-one-half-year consent decree resolving the lawsuit, Amada will pay a total of $250,000 to resolve the EEOC’s claims. The money will be paid to five former Amada employees whom the EEOC identified before and during the lawsuit.

The decree also requires Amada to take action to prevent future sexual harassment, discrimination or retaliation. Amada must hire an outside consultant to review and update its sexual harassment and anti-discrimination policies, including policies for responding to complaints of sexual harassment. The company will also provide semi-annual trainings on Title VII and sexual harassment to all employees, and more extensive training to its owner, managers, and human resources staff, including training on how to appropriately investigate and respond to reports of sexual harassment. In addition, Amada must train caregivers on care of clients with Alzheimer’s disease or dementia, including how to respond to inappropriate sexual behavior that may be exhibited by individuals with those conditions.

“Sexual harassment is illegal under federal law,” said Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office, which has jurisdiction over Arizona, Colorado, Wyoming, New Mexico and Utah. “That includes sexual harassment by an employer’s customers or third parties, if the employer knows or should know the harassment is happening but does nothing to address it. An employer has an obligation to maintain a safe, non-discriminatory workplace for all of its employees, including where the employer sends employees to work in outside locations, such as clients’ homes, where they are isolated and may be especially vulnerable.”

Amy Burkholder, the field director of the EEOC’s Denver Field Office, added, “All employers must understand their obligations under federal law, including to protect the rights of employees who work outside a traditional physical workplace. Employers cannot ignore reports of harassment, and it is illegal to retaliate against employees who raise such concerns.”

The EEOC’s lawsuit was brought in the U.S. District Court for the District of Colorado, Equal Employment Opportunity Commission, et al. v. Joyvida, LLC d/b/a Amada Senior Care, Case No.18-cv-2026-RBJ. The court will retain authority to enforce the terms of the consent decree for its three-and-a-half-year duration.

OSHA, Maine Brewers Team on Worker Safety

Maine beer drinkers can have more confidence now that their IPAs are being brewed in safe workplaces.

The U.S. Department of Labor’s Occupational Safety and Health Administration, Maine Department of Labor Workplace Safety and Health Division (SafetyWorks!) and the Maine Brewers’ Guild have formed an alliance to promote worker safety and health in the Maine brewing industry.

The alliance partners will address industry hazards including lockout/tagout, hazard communication, powered industrial trucks, permit-required confined spaces, electrical, walking-working surfaces and personal protective equipment.

“Craft brewing is a growing industry in Maine. This alliance is an opportunity to share information, training resources and best safety practices to prevent workplace hazards and promote safety in the industry,” said OSHA Area Director David McGuan in Augusta, Maine.

“Maine is a national leader in the brewing industry, and we’re committed to attracting and retaining the best brewing talent our country has to offer. Safe workplaces are better places to work, and so establishing this voluntary alliance was an easy decision,” said Maine Brewers’ Guild Executive Director Sean Sullivan.

The Maine Brewers’ Guild is a nonprofit trade association representing nearly all of Maine’s more than 150 breweries. The parties signed the alliance on April 7, 2021.

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.

The Maine Department of Labor, Workplace Safety and Health Division promotes a healthful, safe, and fair workplace through consultation services, training resources, worksite inspections and regulatory enforcement. Learn more about SafetyWorks! in Maine.

OSHA Sets Sept. 21 for Virtual “Informal Hearing” on Updating Hazardous Communication Standard

The government is inching along in the rewrite of the standard for reporting hazardous chemicals in the workplace.

The U.S. Department of Labor’s Occupational Safety and Health Administration last week issued a notice of informal hearing on the agency’s Hazard Communication Standard (HCS).

The hearing will begin Sept. 21, 2021, at 10 a.m., EDT, and will be held virtually using WebEx. If necessary, the hearing will continue from 9:30 a.m. until 5:00 p.m. EDT on subsequent days. Additional information on how to access the informal hearing will be posted on OSHA’s Proposed Rulemaking to Amend the Hazard Communication Standard webpage.

Individuals interested in participating in the hearing must submit a notice of intent to appear at the hearing, along with any submissions and attachments, identified by Docket No. OSHA-2019-0001, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Submissions and requests to appear must be received by June 18, 2021. Read the Federal Register notice for additional details.

OSHA expects the HCS update will increase worker protections and reduce the incidence of chemical-related occupational illnesses and injuries by further improving the information on the labels and Safety Data Sheets for hazardous chemicals. Proposed modifications will also address issues since implementation of the 2012 standard, and improve alignment with other federal agencies and Canada.

Rehab Policy: Addiction Center to Revise Pregnancy Policy in $146K Settlement With EEOC

Everyone know that pregnant workers must be given the same benefits as nonpregnant workers, right?

Evidently not.

Dallas-based Greenhouse Outpatient Center and its parent company, American Addiction Centers, agreed to damages of $146,613 and provide other relief to settle a pregnancy discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Thursday.

The Dallas rehabilitation center had granted the pregnant employee, a behavioral health technician, a 30-day leave of absence for childbirth. After the employee delivered the baby by caesarean section, which requires abdominal surgery, the employee’s doctor indicated she needed eight weeks to recover before returning to work. Human Resources, however, told the employee her position could not be held open beyond the 30 days, and her employment was terminated, according to the suit. In contrast, the defendants had granted leave during the past 30 days to non-pregnant employees for reasons unrelated to pregnancy.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which prohibits discrimination based on pregnancy in the workplace. In this case, the EEOC sought back pay, plus compensatory and punitive damages, as well as injunctive relief, including an order barring similar violations in the future.

The EEOC filed suit in U.S. District Court for the Northern District of Texas, Dallas Division, Case No 3:19-CV-02302, after first attempting to reach a prelitigation settlement.

The two-year consent decree settling the suit, entered by U.S. District Judge Sidney Fitzwater on May 19, 2021, prohibits future discrimination and retaliation and, in addition to the monetary relief, requires the employer to provide annual training regarding pregnancy and other forms of discrimination, and impose discipline, up to termination, on any manager who discriminates based on pregnancy or permits such conduct to occur under his or her supervision. The decree also contains a provision noting that the defendants implemented a paid parental leave policy and general leave policy, and modified their existing personal leave policy, effective January 1. Among several changes reflected in these policies, the defendants’ new leave policies allow for leave in excess of 30 days.

“It is important that employers understand that pregnant employees must be given the same benefits as non-pregnant employees,” said Meaghan Kuelbs, senior trial attorney in the EEOC’s Dallas District Office. “As a result of this lawsuit, American Addiction now has a policy that will ensure equal treatment of pregnant employees who require leave related to their pregnancy or pregnancy-related condition.”
    
The EEOC’s Dallas District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Texas and parts of New Mexico.

Virtual Event Today Hosted by the EEOC on Covid-19’s Impact on Asian American Community

Asian-Americans have felt the sting of derogatory comments and actions since the onset of the Covid-19 pandemic.

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing laws against employment discrimination and harassment, is hosting a free virtual event, today, May 20, on the impact of COVID-19 on the Asian American Community.

“Civility for All: Navigating the Impact of COVID-19 on the Asian American Community” is open to the public. Capacity is limited.

EEOC Chair Charlotte A. Burrows will be the keynote speaker and will address the Commission’s recent resolution condemning the violence, harassment and acts of bias against Asian Americans and Pacific Islanders (AAPIs).

Laura Shin, acting executive director for the White House Initiative on Asian American and Pacific Islanders (WHIAAPI), will speak on the purpose, mission and priorities of WHIAAPI and the important work being done across the nation to prevent the alarming and increased rates of anti-Asian harassment and violence during COVID-19.

Other experts who will discuss the topics of race and national origin discrimination include Davis Kim, principal legal advisor, and Lucila G. Rosas, senior attorney advisor, both from the Office of EEOC Chair Burrows.

The webinar will include a dialogue with panelists Justin Lock, special assistant for Asian American Pacific Islander issues, U.S. Department of Justice Community Relations Service, San Francisco; Jacinta Ma, director, EEOC Office of Communications and Legislative Affairs, Washington; and Robin S. Toma, president, International Association of Official Human Rights Agencies (IAOHRA) and executive director of the Los Angeles County Commission on Human Relations, Los Angeles.

The EEOC’s Birmingham and Miami District offices have jointly organized this event.  

“We are honored that Chair Burrows has agreed to be our keynote speaker and look forward to this rare opportunity to hear from our agency’s head on this critical topic confronting our nation,” said EEOC Birmingham District Director Bradley Anderson and EEOC Miami District Director Paul Valenti in a joint statement. “To have the opportunity to hear firsthand from this combination of experts with such a wealth and breadth of experience is unparalleled. We are proud to offer an event that is sure to have a profound, positive impact on workplaces everywhere.”

Closed captioning and ASL services will be available. SHRM, HRCI and CLE credits are not provided for this event.  

To register for this virtual event go to: https://eeoc.zoomgov.com/webinar/register/WN_vdL1EXL2S3SW6THR4IkkFw. After registering, you will receive a confirmation email containing information about joining the webinar. Capacity is limited. Other information may be obtained by contacting Birmingham District Outreach & Education Coordinator Teri Peters at (704) 777-8819 / teri.peters@eeoc.gov or Miami District Outreach & Education Coordinator Elaine McArthur at (813) 710-9352 / elaine.mcarthur@eeoc.gov.