Slips, Trips and Falls Final Rule Finally Issued

The Occupational Safety and Health Administration (OSHA) today issued a final rule updating its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The rule also includes a new section under the general industry Personal Protective Equipment standards that establishes employer requirements for using personal fall protection systems.

“The final rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries,” said Assistant Secretary of Labor for Occupational Safety and Health David Michaels. “OSHA believes advances in technology and greater flexibility will reduce worker deaths and injuries from falls.” The final rule also increases consistency between general and construction industries, which will help employers and workers that work in both industries, he added.

OSHA estimates the final standard will prevent 29 fatalities and more than 5,842 injuries annually. The rule becomes effective on Jan. 17, 2017, and will affect approximately 112 million workers at seven million worksites.

The final rule’s most significant update, according to OSHA, is allowing employers to select the fall protection system that works best for them, choosing from a range of accepted options including personal fall protection systems. OSHA has permitted the use of personal fall protection systems in construction since 1994 and the final rule adopts similar requirements for general industry. Other changes include allowing employers to use rope descent systems up to 300 feet above a lower level; prohibiting the use of body belts as part of a personal fall arrest system; and requiring worker training on personal fall protection systems and fall equipment.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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House Republicans Ask Obama Agencies to Cease Rulemaking

House Republicans, led by Majority Leader Kevin McCarthy (R.-Calif.), have sent letters to the heads of all federal agencies asking that they cease issuing rules during the lame-duck last two months of the Obama administration.

The House members also intend to pass a bill forbidding rulemaking until the new president is sworn in. The White House said it would immediately veto the bill and announced that rulemaking would continue until Jan. 20, the last day of the presidency of Barack Obama.

Rep. McCarthy cited similar requests by Democrats of the Republican administration of George W. Bush when Obama was elected in 2008.

Any rules issued between now and Jan. 20 would be subject to Congressional oversight under the provisions of the Congressional Review Act (CRA), and could be overturned come Jan. 21 when Donald Trump takes office.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Obamacare Enrollees Not Deterred by Trump Victory and His Vow to End Program

About 53,000 more individuals than last year signed up for health insurance policies during the first 12 days of open enrollment this year, which commenced Nov. 1 and runs through Jan. 31, despite the election of Donald Trump as president and his vow to “repeal and replace” the Affordable Care Act (ACA).

The Centers of Medicare and Medicaid Services (CMS) announced that for the first 12 days of enrollment, 250,000 new consumers signed up and another 750,000 renewed their plans (using round numbers, obviously), with the total beating last year’s early sign-ups by 50,000-plus.

“The American people are demonstrating how much they continue to want and need the coverage the marketplace offers,” Health and Human Services (HHS) Secretary Sylvia Mathews Burwell said.

Overall, administration officials are predicting 13.8 million enrollees by Jan. 31, up 1.1 million from last year.

Trump and the Republican Congress have announced plans to end Obamacare but have indicated there will be a transition period. Trump himself has said he favors keeping the ACA provisions prohibiting exclusions for pre-existing health conditions and allowing adult children to stay on their parents’ policies until age 26.

More than three-quarters of the policies sold on the federal and state exchanges are heavily subsidized by the government.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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140 Rules the New Congress Could Overturn Instantly in January

According to the Bill Clinton-era Congressional Review Act (CRA), Congress has 60 working days to review and disapprove new regulations issued by federal agencies. Thus any rule issued by the Obama administration since June 1 will be subject to the review by the new Congress in January. Congress can then disapprove any rules it dislikes and send them to the new president for his signature.

(Under the CRA, Senate filibusters are not allowed if the review is undertaken within 60 Congressional session days of rule issuance, so only a majority vote would be needed to reverse any so-issued regulation.)

Under President Obama, the CRA was useless because he would obviously never sign any disapproval legislation. President-elect Trump, however, has signaled his willingness to overturn his predecessor’s rules if he deems them burdensome or unnecessary.

Forbes magazine has compiled a list of 140 rules implemented since June 1 that will be subject to review by the incoming Congress:

RULES SUBJECT TO CONGRESSIONAL REVIEW


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Revised Form I-9 Released

Citizenship and Immigration Services (USCIS) today published a revised version of Form I-9, Employment Eligibility Verification.

By Jan. 22, 2017, employers must use only the new version, dated 11/14/2016 N. Until then, they can continue to use the version dated 03/08/2013 N or the new version.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

The revised Form I-9 is also easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

Form I-9 requirements were established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization on Form I-9.

(As of this posting, the PDF at https://www.uscis.gov/i-9 wouldn’t open in a web browser but would if accessed directly by Adobe Reader after downloading it.)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Court to Consider Overtime Rule on Wednesday

A federal district court in Texas, where a coalition of 21 states filed legal action against the Dec. 1 Obama administration overtime rule, will hold a hearing this Wednesday, Nov. 16, on the issue. If the requested injunction against the rule is denied, the court will hold a dismissal motion hearing on Nov. 28, just two days before the new rule takes effect.

If an injunction is issued, it could put the whole rule on hold or just parts of it. Most legally contentious seems to be the automatic accelerator clause to adjust the overtime wage threshold according to the Consumer Price Index (CPI).

The overtime rule by the Department of Labor (DOL) will adjust the salary threshold for exemption from being paid overtime to $913 a week, up from the currently $455 a week. The annual equivalents are $47,476 verses $23,660.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Three Pharmaceutical Employees Given Criminal Sentences for HIPAA Violations

Three employees of Warner Chilcott, a pharmaceutical company headquartered in New Jersey, were sentenced to home confinement and levied fines, each to varying degrees, for violations of the Health Insurance Portability and Accountability Act (HIPAA) and its privacy provisions.

The three district managers — one located in California, one in North Carolina and one in New York — were prosecuted by the Department of Justice (DOJ) for selling consumers’ protected health information (PHI) without the subjects’ permission.

These district managers and their sales representatives accessed patients’ PHI in order to submit prior authorizations for Atelvia, an osteoporosis drug, and did so without an accompanying signed HIPAA Authorization Form for each consumer.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Honors Inventors in Noise Abatement Contest

Three inventors were recognized for their ideas to reduce work-related hearing loss during the first “Hear and Now — Noise Safety Challenge” hosted by the Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA), in partnership with the National Institute for Occupational Safety and Health (NIOSH) on Oct. 27, in Washington, D.C.

The challenge was launched with the dual goals of inspiring creative ideas and raising business awareness of the market for workplace safety innovation, according to the sponsoring agencies. Ten finalists, selected from 28 submissions to Challenge.gov, were invited to Washington, D.C., to present their solutions to reduce workplace-induced hearing loss.

“This event was an innovative way for government to help better protect workers from job-related hearing loss by connecting the entrepreneurial community with inventors developing solutions,” said Assistant Secretary of Labor for Occupational Safety and Health David Michaels.

A panel of judges awarded first place to Nick Laperle and Jeremie Voix for their custom-fitted earpiece designed to provide a worker with protection, communication and monitoring.

Brendon Dever was selected for second place for a wearable sensor technology that affixes to glasses or protective equipment such as hardhats. The sensor detects noise levels and provides warnings and other communications via color-coded lights.

Third place was awarded to Madeline Bennett for an interchangeable decorative piece that attaches to silicone earplugs. The attachments are manufactured with licensed designs for sports teams, businesses, or music festivals.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Federal Judge Sides with EEOC on Gender Identity Protections Under Title VII

The Equal Employment Opportunity Commission (EEOC) announced that a federal court has denied a motion to dismiss a sex discrimination lawsuit filed by EEOC, ruling that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

On March 1, EEOC filed the U.S. government’s first sex discrimination lawsuit based on sexual orientation, U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB), in U.S. District Court for the Western District of Pennsylvania in Pittsburgh. In its complaint, EEOC charged that a gay male employee was subjected to sex discrimination in the form of harassment because of his sexual orientation and then forced to quit his job rather than endure further harassment. In response to EEOC’s lawsuit, the defendant filed a motion to dismiss the case.

In a decision issued on Nov. 4 by U.S. District Judge Cathy Bissoon, the court denied Scott Medical Health Center’s motion to dismiss EEOC’s case. In its ruling, the court found that sexual orientation discrimination is a type of discrimination “because of sex,” which is barred by Title VII. Applying decisions of the U.S. Supreme Court finding that Title VII’s ban on sex discrimination includes adverse treatment of workers based on “sex stereotypes,” i.e. pre-conceived ideas of how a man or a woman should act or think, the federal court stated, “There is no more obvious form of sex stereo­typing than making a determination that a person should conform to heterosexuality.”

The federal court then concluded: “That someone can be subjected to a barrage of insults, humili­ation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.” While the federal court made a legal ruling in the case, to date there has been no trial or factual finding whether discrimination occurred.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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At Least 8.4 Million to Face Stiff Health Care Premium Hikes

At least 8.4 million consumers buying health insurance on the Obamacare exchanges for 2017 will bear the brunt of the across-the-board premium increases health insurers set for 2017 policies, according to an analysis by the Wall Street Journal.

Seven million of them will be those who purchase policies outside the federal and state health insurance exchanges, which offer federal subsidies depending on income qualifications. The rest will sign up online with Obamacare exchanges but earn too much for a subsidy.

To qualify for a subsidy on the official exchanges, an individual or family cannot earn more than four times the federal poverty level — about $47,000 for a single adult or $95,000 for a family of four.

Premium hikes are averaging about 25 percent for 2017 as insurance companies seek to recoup losses generated by the high number of older and sicker individuals buying insurance after the Affordable Care Act (ACA) lifted all restrictions on pre-existing conditions.

Some estimates place the number of non-exchange consumers at 9 million or more.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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