FMLA Confidentiality Provisions Supersede OSHA Recordkeeping Requirements

The federal Occupational Safety and Health Review Commission recently issued an important ruling for employers who have to deal with conflicting reporting and confidentiality requirements under the Occupational Safety and Health Act (“OSHA”) and the Family Medical Leave Act (“FMLA”) of 1993, 29 U.S.C. §§ 2601-2654. In Secretary of Labor v. United States Postal Service, OSHRC No. 08-1547 (09/29/14), the Commission held that the FMLA’s confidentiality provisions supersede OSHA’s recordkeeping requirements.

An employee in the USPS distribution center in Seattle, Washington, submitted an application for leave under FMLA after she learned she was allergic to the dust generated at the facility where she worked sorting mail. The application included a statement from her doctor that she had “a serious health condition…caused by her work environment exclusively.” The postal service did not record the illness as work-related on its OSHA 300 log or 301 form pursuant to 29 C.F.R. Part 1904. The employee filed a complaint with OSHA. After an investigation, OSHA issued a citation for failure to record the illness, claiming that the USPS had knowledge that the employee’s condition was work-related.

The USPS contested the citation, arguing that a FMLA regulation, 29 C.F.R. § 825.500(g), required the postal service to maintain the information confidential; that the knowledge of the employee’s FMLA coordinator about the nature of the employee’s illness could not be imputed to the USPS; and that the employee’s supervisor had no independent knowledge of the illness. After a hearing, an Administrative Law Judge upheld the citation, including the $500.00 proposed penalty, and the USPS appealed. The Commission agreed with the employer on all points and reversed the decision.

This is an important and welcomed decision for employers and human resource managers, who routinely have to navigate a minefield of conflicting and confusing regulations. The upshot is that, if an employer receives information in connection with an application for leave under FMLA indicating that the employee’s condition may be work-related, the employer does not have to record the injury or illness on its OSHA logs and reports. Although this decision was federal, Kentucky’s Occupational Safety and Health Review Commission will likely follow it as precedent.

Kembra Sexton Taylor

 

 

 

 

Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

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Employment Law Cases To Watch During U.S. Supreme Court’s New Term

The Supreme Court of the United States began its new term on Monday, October 6, 2014. Typically, the Court hears between 60-70 oral arguments per year and reviews approximately another 50-60 more cases on briefs alone. This year, there are two significant employment discrimination cases on the docket.Gavel on court desk

 

 

The first is Young v. United Parcel Service, set to be heard on December 3. In this case, the Court will decide whether the Pregnancy Discrimination Act (“PDA”) requires an employer that provides work accommodations to non-pregnant employees with work limitations to accommodate pregnant employees who are “similar in their ability or inability to work.” The plaintiff is Peggy Young, a UPS delivery driver who became pregnant and whose doctor recommended that she refrain from lifting packages heavier than 20 pounds. UPS denied Young’s request for accommodation, even though the company had a practice of giving light duty assignments to other employees who were temporarily unable to perform their jobs. UPS instead forced Young to take an extended, unpaid leave of absence until she could return to work after child birth. In addition to wages, Young lost her medical insurance during her leave.

Young sued UPS under the PDA, which amended Title VII of the 1964 Civil Rights Act definition of “discrimination” to include discrimination in employment “because or on the basis of pregnancy, childbirth, or related medical expenses.” The district court granted summary judgment, ruling that UPS did not discriminate against Young, because its policy was based on “gender-neutral,” “pregnancy-blind” criteria, such as whether an employee was injured on or off the job. The Fourth Circuit Court of Appeals upheld the judgment, concluding that the plaintiff did not present any direct evidence of pregnancy discrimination.

The second case, EEOC v. Abercrombie & Fitch Stores, touches on religious liberty. Teenager Samantha Elauf, a Mulsim, wore a head scarf during her 2008 interview for a position at Abercrombie Kids. Ms. Elauf’s religion was not discussed during the interview. Later, a district manager said that, under the company’s “Look Policy,” employees were not allowed to wear hats to work. Ms. Elauf was then given a low score in the company’s “appearance and sense of style” part of the evaluation, and was not offered a job.

A federal trial judge found the company liable for discrimination, determining that Abercrombie knew Ms. Elauf wore the head scarf for religious reasons. Subsequently, a jury awarded the claimant $20,000 in damages. The appellate court reversed the decision, holding that Ms. Elauf never explicitly notified the company that she had a religious practice that conflicted with company policies. The EEOC said in its petition for review that the ruling could affect civil rights protections in a large number of cases, because job applicants will not always know when their religious practices might present an issue that needs to be addressed with an employer.

Watch this space for details on how the Court rules in these important cases.

Kembra Sexton Taylor

 

 

 

 

Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

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EEOC Sues Companies for Transgender Discrimination

The Equal Employment Opportunity Commission (“EEOC”) has just filed suit against two companies for alleged discrimination against transgendered employees. The suits were filed separately in Florida and Michigan, against Lakeland Eye Clinic and G.R. Harris Funeral Homes, Inc., respectively. In both cases, employees alleged that they were fired after they disclosed they were undergoing gender transitions.

Title VII does not specifically protect against transgendered persons. In 2012, however, in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the EEOC ruled that employment discrimination against employees because they are transgender, because of gender identity, and/or because they have transitioned (or intend to transition) is discrimination based on sex, and thus violates Title VII.

The EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as one of their top enforcement priorities in its 2012 Strategic Enforcement Plan. Thus, these suits should not be surprising. Earlier this year, President Obama also issued an Executive Order prohibiting federal contractors from discrimination against lesbian, gay, bisexual and transgender workers.

In light of the recent emphasis on the protection of these individuals, employers should take extra precautions to ensure that no discriminatory practices are in force in the workplace. Further, all adverse employment decisions should be properly documented and managers and supervisors should be properly trained about what to do should a discrimination-related issue arises.

Ben Riddle

 

 

 

 

 

Benjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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More Transparency on Horizon for Federal Contractors

The U.S. Department of Labor (“DOL”) has issued a proposed rule that would bar federal contractors from firing or discriminating against employees or applicants who discuss their pay, or the pay of their co-workers. The proposal comes after President Obama’s executive order in April, which instructed the DOL to issue a rule requiring pay transparency among federal contractors.

According to the Office of Federal Contract Compliance (“OFCCP,” a sub-agency of the DOL), pursuant to the rule, federal contractors or subcontractors would be banned from firing or otherwise discriminating against any employee or applicant for discussing, disclosing, or inquiring about their compensation or that of any other employee or applicant. The rule would also require that federal contractors include the nondiscrimination provision in their handbooks and manuals. The rule would also add definitions for key words such as “compensation,” “compensation information,” and “essential job functions.”

OFCCP believes that existing pay secrecy policies interfere with the requirement that those who work for federal contractors be compensated for merit and that such policies can lead to decreased worker productivity, due to employees’ decline in trust and motivation. The proposal was published on September 17, 2014, in the Federal Register and is open for comment until December 16, 2014.

In addition to the ban on pay secrecy policies, the DOL also recently proposed another rule which would require most federal contractors and subcontractors annually to submit Equal Pay Reports on employee compensation to OFCCP. The aim of that rule is to collect summary data on how federal contractors and subcontractors pay their employees, with an eye toward identifying potential gender-based and race-based pay disparities.

In anticipation of these rules becoming final, employers should review and revise current compensation systems with legal counsel. Compensation disparity issues should be identified and addressed immediately in order to minimize future risks.

B. Koch

 

 

 

 

Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

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EEOC Sues Home Care Agency for GINA Violation

On September 17, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued a press release announcing it is suing BNV Home Care Agency, Inc. (“BNV”) for practices that are prohibited by the Genetic Information Nondiscrimination Act (“GINA”).

GINA prevents employers from requesting genetic information, including family medical history, or using that information in the hiring process. According to the release, BNV asked for family medical history from a class of thousands of applicants and employees through an “Employee Health Assessment” form. BNV applicants were required to complete the form after a job offer was made, but before hire. Employees had to complete the form annually.

Patient Medical History Form

 

BNV should serve as an important reminder that neither employers nor contracted third-party providers (i.e., doctors’ offices that conduct employment-related physicals or tests on the employers’ behalf) should use forms that ask for applicants or employees to disclose family medical history. In January 2014, just ten months after the EEOC filed its first systemic lawsuit alleging violations of GINA against a nursing and rehabilitation care facility, the agency settled the case for $370,000.  At the time, the EEOC warned that, “When illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis.” In addition, addressing emerging and developing issues in equal employment law, which includes genetic discrimination, is one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan. In short, employers can be sure that the EEOC is on high alert for any employment practices that may violate GINA.

Don’t risk the legal liability. If you are an employer and have questions about GINA or your employment-related forms, contact a McBryer attorney today.

B. Johnson

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Sixth Circuit Vacates Decision On Telecommuting Accommodation

In May, we wrote about the Sixth Circuit’s interesting decision in Equal Opportunity Commission v. Ford Motor Co., wherein the Court expanded the instances in which a telecommuting arrangement would be considered a reasonable accommodation for disabled employees in accordance with the Americans with Disabilities Act (“ADA”).[1]

In short, a 3-judge panel from the Sixth Circuit reversed a trial court’s summary judgment in favor of the employer, Ford, holding that physical presence at the employer’s workplace might not be as essential job function and that telecommuting could be a reasonable accommodation from an employee suffering with irritable bowel syndrome, despite Ford’s stance that the employee’s position was not suitable for telecommuting. It is important to note that the Court did not definitively establish that Ford failed to make reasonable accommodations; rather, the Court’s ruling made it clear that the determination should be left up to the jury.

Highway Signpost Telecommuting

Following the ruling, several state Chambers of Commerce and other groups with strong interest in the matter asked the full Sixth Circuit to reconsider the panel ruling. They argued that the panel’s decision essentially gave employees considerable leverage to decide when and where they were able to work. On Friday, August 29, 2014, the Sixth Circuit entered a summary order vacating the panel’s opinion and redocketing the case for consideration by the full court en banc.

It is possible that the full court could affirm the panel’s ruling, but the decision to vacate may hint that other members of the Sixth Circuit would like to weigh in on the issue and harbor a different view.

We will keep you updated as this case progresses. In the meantime, if you have any questions about your telecommuting policy or the ADA, contact legal counsel.

[1] [1] EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. Apr. 22, 2014).

B. Koch

 

 

 

 

Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

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OSHA’s New Regulations Increase Employers’ Reporting Responsibilities

On September 11, 2014, the Occupational Safety and Health Administration (“OSHA”) released a new rule which will significantly increase the type of injuries that must be reported to the agency. The new rule maintains the requirement for employers to notify OSHA of any workplace fatalities within eight (8) hours. Now, in addition, employers are required to report all hospitalizations, plus any injuries that result in amputations or loss of an eye within twenty-four (24) hours. According to OSHA Administrator David Michaels, the expanded reporting requirements for severe injuries will result in employers being “more likely to take the steps necessary to better protect the lives and limbs of their employees.” Michaels said OSHA will use the data they receive to better target industries that need to do more to prevent injuries.

Safety Inspector Checklist

It is important to note that all employers covered by the Occupational Safety and Health Act, even those who are exempt from maintaining injury and illness records, are required to comply with OSHA’s new severe injury and illness reporting requirements. The rule will go into effect on Jan. 1, 2015, for workplaces under federal OSHA jurisdiction. OSHA is encouraging States with OSHA-approved job safety and health programs to implement the new requirements by the same date, but employers will need to verify State plan changes or contact legal counsel for more information.

Employers should report fatalities or severe injuries by phone to the nearest local OSHA office during business hours. Alternatively, the 24-hour OSHA hotline may be used after business hours. Currently, an electronic reporting method is in the works. Employers should be aware that all reports garnered by the new final rule will be made public on OSHA’s website.

If you have any questions about OSHA or your reporting obligations, contact legal counsel today.

B. Johnson

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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