OSHA Issues General Warning on Heat Hazards As It Works on Specific Rule for U.S. Workplaces

The feds are turning up the (rhetorical) heat to remind employers they must keep employees safe under the current excessive heat conditions that are racking the nation.

The U.S. Department of Labor July 27 announced that its Occupational Safety and Health Administration has issued a heat hazard alert to remind employers of their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces.

The department also announced that OSHA will intensify its enforcement where workers are exposed to heat hazards, with increased inspections in high-risk industries like construction and agriculture. These actions will fully implement the agency’s National Emphasis Program on heat, announced in April 2022, to focus enforcement efforts in geographic areas and industries with the most vulnerable workers. 

The action comes as President Biden announced new actions today to protect workers from extreme heat and new investments to protect communities, as historically high temperatures break records and expose millions of people to the serious dangers of heat in the workplace.  

“Historically high temperatures impact everyone and put our nation’s workers at high risk,” said Acting Secretary of Labor Julie Su. “A workplace heat standard has long been a top priority for the Department of Labor, but rulemaking takes time and working people need help now. Today, at the President’s request, the Occupational Safety and Health Administration issued a heat hazard alert to make sure employers follow current standards and that workers across the country know their rights. This action, combined with OSHA’s increased heat-safety enforcement efforts, shows that we are determined to protect the safety and health of millions of people whose jobs become more hazardous in harsh weather.”

Since 2011, the Bureau of Labor Statistics reports 436 people have died due to workplace heat exposure, with an annual average of 38 deaths between 2011 to 2019. In addition, an average of 2,700 cases involving heat illnesses lead to days lost at work, putting an additional economic burden on workers and employers. Statistics show that people who work in conditions without adequate climate-control face higher risks of hazardous heat exposure and that these situations disproportionately expose people of color to hazardous heat.

In October 2021, OSHA began the rulemaking process to consider a heat-specific workplace standard by publishing an Advance Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings in the Federal Register.

“As the Occupational Safety and Health Administration works toward proposing a rule to protect workers from heat illness, we are taking several measures today to better protect workers in extreme heat,” said Assistant Secretary for Occupational Safety and Health Doug Parker. “Employers have a duty to protect workers by reducing and eliminating hazards that expose workers to heat illness or injury.”

OSHA uses hazard alerts to provide specific information on safety and health hazards to employers, workers and other stakeholders. An alert describes the hazard and offers recommendations on how hazardous exposures can be eliminated or reduced and what actions employers should take to protect employees. The alert issued today does the following:

• Highlights what employers can and should be doing now to protect employees.
• Ensures employees are aware of their rights, including protections against retaliation.
• Highlights steps OSHA is currently taking to protect workers.
• Directs employers, employees and the public to crucial OSHA resources, including guidance and fact sheets on heat.

“State laws that attempt to limit workers’ access to basic heat-illness prevention measures send a dangerous message that employers are not responsible for providing employees with a safe work environment. In fact, that is simply not the case. Regardless of their job or where in the nation they work, workers have the right to a safe and healthy workplace. OSHA will use every tool and mechanism at our disposal to enforce those rights and make sure that every employee ends their workday safe and healthy,” Parker added.

As the rulemaking process for a proposed heat-specific workplace standard continues, OSHA has moved to protect workers from excess heat in the workplace by taking the following actions:

• Developing an enforcement initiative on heat-related hazards.
• Launching of a National Emphasis Program on heat inspections.
• Creating the National Advisory Committee on Occupational Safety and Health’s Heat Injury and Illness Prevention Work Group to understand challenges and share best practices to protect workers.
• Launching a Heat Illness Prevention campaign to educate employers and workers on the dangers of working in the heat.

Learn more about OSHA and how to protect workers from heat illness.

Prison Commits to Training in ADA Settlement

Had the employer done the right thing initially by away of offering a reasonable accommodation, it wouldn’t be under the thumb of the federal government now.

The California Department of Corrections and Rehabilitation has settled a federal charge of disability filed with the U.S. Equal Employment Opportunity Commission (EEOC) for significant training and other injunctive relief, the federal agency announced July 27.

According to the EEOC, Wasco State Prison, a facility under the California Department of Corrections and Rehabilitation, denied a reasonable accommodation to an employee which obligated them to utilize accrued leave instead of remaining on the job.

The EEOC investigated the allegations and found reasonable cause to believe the California Department of Corrections and Rehabilitation violated the Americans with Disabilities Act of 1990.

Without admitting liability, the California Department of Corrections and Rehabilitation has entered into a conciliation agreement with the EEOC. The agency has agreed to provide training to its management and supervisory positions within the Mental Health Department at the Wasco State Prison (WSP), return to work coordinators at WSP, and any other person responsible for handling or receiving reasonable accommodation requests. This training will include how to recognize discrimination with a specific focus on disability-based harassment and retaliation, training on reasonable accommodations, the interactive process, and undue hardship; training on how to properly identify, handle and forward complaints of discrimination in a neutral manner; and how to recognize retaliation under anti-discrimination laws and how to prevent retaliation from occurring. Additionally, WSP will post a notice to all employees about the resolution of this charge and their rights under federal anti-discrimination law. The EEOC will monitor compliance with this agreement.

“This resolution addresses workplace concerns the EEOC sees often, failure to provide accommodations under the ADA and forcing employees to take medical leave,” said Armando Hernandez, director of the EEOC’s Fresno local office. “We commend the California Department of Corrections and Rehabilitation for resolving this charge and for putting in place training measures that will have a significant impact on the employees at the Wasco State Prison.”

To find out more information about the Americans with Disabilities Act and reasonable accommodations, visit https://www.eeoc.gov/eeoc-disability-related-resources.

Seeing the Light: EEOC Updates ADA Technical Assistance Document on the Visually-Disabled

The commission is training its gaze on visually-disabled applicants and employees.

The U.S. Equal Employment Opportunity Commission (EEOC) Wednesday released an updated technical assistance document, “Visual Disabilities in the Workplace and the Americans with Disabilities Act,” explaining how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities.

The document outlines when an employer may ask an applicant or employee questions about their vision, how an employer should treat voluntary disclosures about visual disabilities, and what types of reasonable accommodations those with visual disabilities may need in the workplace. The updated document highlights new technologies for reasonable accommodation, many of which are free or low-cost, and describes how using artificial intelligence (AI) and algorithms to make employment decisions can impact individuals with visual disabilities.

The document addresses how an employer should handle safety concerns about applicants and employees with visual disabilities and how an employer can ensure that no employee is harassed because of a visual disability.

“The ADA became law 33 years ago today and continues to provide vital protections for workers, including those with visual disabilities,” said EEOC Chair Charlotte A. Burrows. “Providing reasonable accommodations is an employer’s responsibility. Workers who have vision impairments, including limited or low vision, should be provided the resources needed to succeed. This document will provide employers the guidance to do so.”

Many individuals who are blind, visually impaired, or have other vision-related conditions can perform successfully on the job and should not be denied opportunities because of stereotypical and generalized negative assumptions. The document also discusses harassment and retaliation.

Recent EEOC news releases about individuals who are blind or have vision impairments or other vision-related conditions and sought reasonable accommodations as applicants or employees are available in the EEOC’s newsroom.

More information about disability discrimination is available on EEOC’s disability discrimination landing page: https://www.eeoc.gov/eeoc-disability-related-resources. For a resource on workplace accommodations, visit https://askjan.org/.

$20K Later, Alleged Harassment Victim Made Whole in Restaurant Settlement With the EEOC

For this, my 4,000th post, a reminder that when told of alleged sexual harassment, the employer’s proper response is to investigate and stop it from happening again–and not retaliate against the complainant.

Bojangles’ Restaurants, Inc., a Delaware corporation operating in Greensboro, North Carolina, has agreed to pay $20,000.00 and provide other relief to a settle a sexual harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced Wednesday.

According to the EEOC’s lawsuit, a female team member at a Bojangles fast food restaurant in Greensboro was sexually harassed from March 2020 to June 2020, as the restaurant’s general manager made numerous sexual remarks to the employee and inappropriately touched and grabbed her. After complaining about the general manager’s conduct, the employee was denied the opportunity to participate in a management training program and was transferred to a different location as retaliation.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment in the workplace and prohibits retaliation against employees who oppose sexual harassment. The EEOC filed suit in U.S. District Court for the Middle District of North Carolina (Equal Employment Opportunity Commission v. Bojangles’ Restaurants, Inc., Civil Action No.: 1:22-cv-00739) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to paying $20,000.00 in damages to the affected employee, the two-year consent decree, which applies to specific restaurants, requires Bojangles to train managers and employees on sexual harassment, to refrain from discriminating against employees on the basis of sex, including in the administration of management training programs, and to refrain from retaliating against employees who complain of sexual harassment. Bojangles has agreed not to rehire the offending manager. 

“Employees have a right to be free from sexual harassment in the workplace,” said Melinda C. Dugas, regional attorney for the Charlotte District. “Employers cannot tolerate such conduct or allow managers to retaliate against employees for reporting the harassment.”

For more information on sexual harassment, please visit https://www.eeoc.gov/sexual-harassment. For more information on retaliation, please visit https://www.eeoc.gov/retaliation.

The EEOC’s Charlotte District is charged with the enforcement of federal laws against employment discrimination in North Carolina, South Carolina, and Virginia.

Thanks to my loyal readers for sticking with me this far — onto 5,000!

Glass Manufacturer Gets “Star” Safety Rating

Here is a safety badge of honor that every employer should aspire to.

The Occupational Safety and Health Administration (OSHA) has welcomed Cardinal IG Waxahachie, a glass manufacturer and provider, into the agency’s Voluntary Protection Program with a “Star” designation. The action follows an OSHA audit at the company’s Waxahachie facility. The agency awards VPP status to companies with safety and health management systems that provide information, guidance and training to help protect the workers’ safety and health.

OSHA’s VPP Program works with employers committed to worker safety and health to prevent workplace fatalities, injuries and illnesses. VPP programs bring company management, site employees and OSHA together to work proactively to focus on hazard prevention and control, worksite analysis, training, management commitment and worker involvement to prevent fatalities, injuries and illnesses.

“Cardinal IG Waxahachie Facility entry into OSHA’s Voluntary Protection Program will greatly improve the health and safety in the workplace for Cardinal IG’s employees and onsite contractors,” explained OSHA Area Director Timothy Minor in Fort Worth. “Joining the program is indicative of the company’s commitment toward health and safety in the workplace and should be applauded for that.”

OSHA Fines Food Plant $108K in Safety Case

This employer is a safety violator recidivist–a category that no employer should want to be part of.

When U.S. Department of Labor inspectors returned to a Boston food plant in March 2023, they discovered the plant’s operator — Chinese Spaghetti Factory Inc. — still had not installed required safety guards on a dumpling machine’s rotating shafts, a dangerous hazard for which the company was cited for after an employee suffered serious injuries in 2022.

The department’s Occupational Safety and Health Administration conducted the follow-up inspection at the Newmarket Street facility to verify that the company had corrected the unsafe conditions identified in 2022. As a result, OSHA proposed an additional $82,500 penalty for failing to correct this hazard.

The agency’s safety inspection and a concurrent health inspection found several new and recurring hazards, which led OSHA to issue citations and propose $108,031 in penalties for the following:

• A willful violation for allowing the dumpling machine’s gears to remain unguarded, as two employees worked in close proximity to the hazard.
• Two repeat violations for exposing employees to the risks of electrical shock and injuries from unguarded electrical components and unguarded operating parts of a forming and filling machine, conditions similar to hazards for which OSHA cited the company in 2022 and 2019.
• A serious violation for lacking a program or procedures to prevent the unintended activation of various machines, including grinders, choppers, and forming and filling machines, while employees cleaned and maintained them.
• Three serious violations for an incomplete hearing conservation program for employees exposed to high noise levels, inadequate eyewash facilities for employees working with corrosive cleaners and an incomplete chemical hazard communication program.

Since 2017, OSHA inspections have identified 10 serious, repeat and other-than-serious violations at the Chinese Spaghetti Factory’s location.

In total, the company faces $190,541 in proposed fines for its recent uncorrected, recurring and new hazards.

“The sizable penalties in this case reflect the gravity of this situation and the dangers faced by people employed at the Chinese Spaghetti Factory’s facility,” explained OSHA Area Director James Mulligan in Braintree, Massachusetts. “The employer’s willingness to ignore federal regulations and failure to correct workplace hazards, including one that seriously injured a worker, is unacceptable. Safety and health is a fundamental right for every worker and must be a company-wide core value.”

View the safety and health citations and the Failure to Abate notice.

Chinese Spaghetti Factory Inc. has 15 business days from receipt of its 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.

Learn more about OSHA, the free on-site safety consultation program and how to protect employees against machine guarding dangers and hazardous energy.

Safe Harbor: OSHA Docks Maersk for Firing Seaman For Reporting Safety Concerns to USCG

The terminated whistleblower get his job back too.

A federal whistleblower investigation has determined that Maersk Line Limited — one of the world’s leading providers of marine cargo services — suspended and terminated a seaman illegally after the seaman reported numerous safety concerns about a company vessel to the U.S. Coast Guard.

The U.S. Department of Labor’s Occupational Safety and Health Administration determined Maersk Line’s termination of the seaman violated the federal Seaman’s Protection Act. Seaman may report concerns directly to the USCG and are not required to follow any company policy that requires employees to report first to the company. The law protects the rights of seamen aboard a U.S.-registered vessel, or any vessel owned by a U.S. citizen to report safety concerns or violations of maritime laws and to cooperate with federal officials at any time.

OSHA ordered the Maersk Line to reinstate the seaman and pay $457,759 in back wages, interest, compensatory damages and $250,000 in punitive damages. The company must also revise its policy to not prohibit seamen from contacting the USCG or other federal, state or local regulatory agencies before first notifying the company.

“Federal law protects a seaman’s right to report safety concerns to federal regulatory agencies, a fact every maritime industry employer and vessel owner must know,” said OSHA Regional Administrator Eric S. Harbin in Dallas. “Failure to recognize these rights can instill a culture of intimidation that could lead to disastrous or deadly consequences. The order underscores our commitment to enforcing whistleblower rights that protect seamen.”

Investigators learned the seaman reported a variety of safety concerns about the vessel Safmarine Mafadi — a 50,000-ton, 958-foot container ship — to the U.S. Coast Guard in December 2020. The safety concerns included the following:

• Gear used to release lifeboats did not work properly and needed repair and replacement.
• On several occasions, a ship’s trainee was alone and unsupervised while on ship’s watch, including during one incident when a fuel and oil spill occurred that took the crew two days to clean, and could have created an environmental spill.
• Crew members possessing and possibly consuming alcohol onboard.
• Two leaks in the starboard tunnel, found during an inspection, and the bilge system caused flooding in cargo holds and needed need of repair.
• Rusted, corroded and broken deck sockets needed repair and replacement.

Maersk responded by suspending the seaman in December 2020 and then terminating them in March 2021, for making the complaint without notifying the company first.

“The U.S. Coast Guard is committed to partnering with OSHA in protecting whistleblowers and to vigorously enforce the Seaman’s Protection Act. We encourage everyone within the maritime domain to support and abide by these protections,” said Rear Admiral and Assistant Commandant for Prevention Policy for the U.S. Coast Guard Wayne Arguin. “An open and transparent safety culture within the maritime industry is vital to protecting the lives of mariners and the public. Together, we can make the maritime workplace safe for everyone.”

Headquartered in Norfolk, Virginia, Maersk Line Limited operates the largest U.S. flag fleet in commercial service and employs approximately 700 U.S. mariners. The company is the largest subsidiary of A.P. Moeller-Maersk, a global provider of maritime transport, logistics services and terminal operations, based in Denmark.

OSHA enforces the whistleblower provisions of the Seaman’s Protection Act and more than 20 other statutes protecting employees who report violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, criminal antitrust and anti-money laundering laws. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs webpage.

Read OSHA’s findings in this whistleblower investigation.

Hear This: Restaurant Franchise Out $50K in Settling ADA Suit Over Denial of ASL Interpreters

Employers, you’ve can’t be dismissive of job applicants with hearing issues. You’ve got to explore reasonable accommodation options that give them a chance to work.

Houcorp, Inc. (Houcorp), a fast-food restaurant franchise operating seven restaurants in Indian River and Brevard Counties, will pay $50,000 and provide American Sign Language (ASL) interpreters to applicants and employees, upon request, for interviews, orientations, trainings, and performance reviews to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Friday

According to the EEOC’s suit, an applicant advised Houcorp’s hiring and training manager she was hard of hearing and asked for an ASL interpreter for her orientation with the company. The manager responded by stating Houcorp does not provide ASL interpreters, which made it impossible for the applicant to attend orientation and start her job.

Such alleged conduct violates the Americans with Disabilities Act (ADA) which prohibits discrimination based on a disability. The EEOC filed suit in U.S. District Court for the Southern District of Florida, West Palm Beach Division (EEOC v. Houcorp, Inc., Case No. 2:23-cv-14191-AMC) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the monetary relief, the three-year consent decree requires Houcorp to update its job postings and hiring advertisements, revise its anti-discrimination policies, post a notice regarding this lawsuit, and report on the handling of requests for reasonable accommodations. Houcorp will also provide live training to owners, managers, and human resources personnel on the ADA, as well as training designed specifically to raise awareness about issues affecting the deaf community and dispelling stereotypes associated with hiring deaf or hard-of-hearing individuals. Finally, Houcorp will conduct an internal audit to identify potential obstacles and to make the workplace more accessible to deaf and hard-of-hearing applicants and employees.

“We commend Houcorp for working proactively with the EEOC,” said EEOC Regional Attorney Robert Weisberg. “The company’s willingness to provide training and implement changes reflects a good faith effort to resolve this matter, and the Commission is pleased with the resolution.” 

“Houcorp should be commended for agreeing to a consent decree early in this litigation,” said EEOC Miami District Director Evangeline Hawthorne. “This settlement includes provisions that ensure deaf and hard-of-hearing applicants and employees will have the benefit of ASL interpreters going forward, and we appreciate Houcorp’s commitment to improvement.”

For more information on disability discrimination, please visit https://www.eeoc.gov/disability-discrimination and https://www.youtube.com/watch?v=VGVmImhj5KI&list=PL65EFmHB_s4B3qYBjr-0pT_0121x4QoNf

The Miami District Office’s jurisdiction includes Florida, Puerto Rico and U.S. Virgin Islands.

EEOC EXCEL Conference Runs July 30-Aug 2

Mark your calendar now for this vital training opportunity on emerging issues and conflicts in employment law beginning less than 10 days from now.

The U.S. Equal Employment Opportunity Commission (EEOC) announced keynote speakers at the annual EXCEL (Examining Conflicts in Employment Laws) Training Conference to be held July 30 – Aug. 2 at the Washington Marriott Marquis. EXCEL provides the employer community, in both the federal and private sectors, with tools and strategies to address emerging issues in equal employment opportunity (EEO) and human resources (HR) to help foster model workplaces nationwide.

Featured speakers include: Charlotte A. Burrows, Chair of the EEOC; Cathy Ann Harris, Acting Chair of the U.S. Merit Systems Protection Board; Susan Tsui Grundman, Chair of the Federal Labor Relations Authority; Chai Feldblum, Vice President of the U.S. Ability One Commission; and Paul Kuntzler, lifelong activist for civil rights for the LGBTQ community.

The 26th EXCEL Training Conference, themed “Marking Milestones: Looking Back, Moving Forward,” commemorates significant anniversaries in 2023, such as the 60th anniversaries of the March on Washington and the Equal Pay Act of 1963, as well as the implementation of the newly passed Pregnant Workers Fairness Act.

Conference details including accommodations, agendas, and pricing are available at EXCEL 2023.

The EXCEL Training Conference includes more than 70 workshops, three plenary sessions, a specialty track, 8-hour counselor and investigator refresher courses, and continuing education legal, SHRM, and HR Certification Institute (HRCI) approved credits.

Registration questions can be directed to 1-866-446-0940 or 1-800-828-1120 (TTY) or EXCEL@eeoc.gov. The conference will take place at the Marriot Marquis Hotel, located at 901 Massachusetts Avenue, NW, Washington, DC 20001.

OSHA Seeks Uniformity in PPE Standards

Standardization across all industries is the government’s aim with this worthy proposal.

The U.S. Department of Labor on Wednesday announced a notice of proposed rulemaking to clarify the personal protective equipment standard for the construction industry.

The current standard does not state clearly that PPE must fit each affected employee properly, which the Occupational Safety and Health Administration’s general industry and maritime standards do. The proposed change would clarify that PPE must fit each employee properly to protect them from occupational hazards.

The failure of standard-sized PPE to protect physically smaller construction workers properly, as well as problems with access to properly fitting PPE, have long been safety and health concerns in the construction industry, especially for some women. The proposed rule clarifies the existing requirement, and OSHA does not expect the change will increase employers’ costs or compliance burdens. The proposed revision would align the language in OSHA’s PPE standard for construction with standards for general industry and maritime.

“If personal protective equipment does not fit properly, an employee may be unprotected or dangerously exposed to hazards and face tragic consequences,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “We look forward to hearing from stakeholders on this important issue as we work together to ensure that construction workers of all genders and sizes are fitted properly with safety gear.”

Submit comments and hearing requests online using the Federal eRulemaking Portal and reference Docket No. OSHA-2019-0003. Read the Federal Register notice for details. Comments and hearing requests must be submitted by Sept. 18, 2023.

PPE must fit properly to provide adequate protection to employees. Improperly fitting PPE may fail to provide any protection to an employee, present additional hazards, or discourage employees from using such equipment in the workplace.

Learn more about personal protective equipment in construction.