EEOC Issues Guidance on Workplace Rights Under the ADA

The Equal Employment Opportunity Commission (EEOC) has issued a resource document that explains workplace rights for individuals with mental health conditions under the Americans With Disabilities Act of 1990 (ADA).

Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights explains that job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. They may also have a right to reasonable accommodations at work. Reasonable accommodations are work adjustments that can help individuals to perform their jobs and remain employed. The resource document also answers questions about how to get an accommodation, describes some types of accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.

EEOC charge data shows that charges of discrimination based on mental health conditions are on the rise. During fiscal year 2016, preliminary data shows that EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations.

“Many people with common mental health conditions have important protections under the ADA,” said EEOC Chair Jenny R. Yang. “Employers, job applicants, and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees.”

The resource document is part of an ongoing series of publications providing individuals with medical conditions or work restrictions with user-friendly explanations of their rights, and with information that they can give to a health care provider to explain how to provide appropriate medical documentation, if required. Earlier this year EEOC published resource documents addressing the employment rights of individuals with HIV infection and individuals who are pregnant. The new publication’s companion document, The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work, can be found here.


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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Jenny Yang to Fill Out Term on EEOC, Retaining Democrat Majority

Current Equal Employment Opportunity Commission (EEOC) Chair Jenny Yang has announced she will fulfill her statutory appointment and not leave the agency until July 2017, giving the Democrats a three-to-two majority until that time. However, she will be forced to relinquish her chair to a Republican commissioner whom incoming President Donald Trump chooses.

Yang told Bloomberg news that she hopes the revised EEO-1 reporting form, set to take effect on March 31, 2018, will survive the transition. Employers with 100 or more employees are then slated to begin submitting summary pay data categorized by sex, race and ethnicity, on the EEO-1.

“This is an issue we’re very committed to; it’s been one of our national priority areas for some time,” she told Bloomberg.

Business groups will no doubt press the Trump administration to cancel the EEO-1 reporting change.


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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5th Circuit Court Agrees to Expedite Overtime Injunction Review, But…

The 5th U.S. Circuit Court of Appeals, responding to a filing by the Department of Labor (DOL), has agreed to an expedited schedule for a review of a Texas federal judge’s injunction blocking the DOL’s overtime rule that was set to take effect Dec. 1.

Under the expedited process, the DOL must file its opening brief by Dec. 16, with amicus (friendly) briefs due a week later.

Now for the clincher: the 21 states that filed the original lawsuit that led to the injunction have until Jan. 17, 2017, to file their briefs, with amicus briefs due by Jan. 24. The DOL then would have until Jan. 31 to file a counter brief.

Meanwhile, Donald Trump will by then have become president, and it’s unclear if he would support either the overtime rule or the legal action to overturn the injunction on the rule.


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 Seeks Input on Preventing Violence in Healthcare, Social Assistance Settings

The Occupational Safety and Health Administration (OSHA) today issued a Request for Information on whether to propose a standard to prevent workplace violence in healthcare and social assistance settings. The agency has also scheduled a public meeting on Jan. 10, 2017, in Washington, D.C., to discuss strategies for reducing incidents of violence in these workplaces.

A recent Government Accountability Office report found that the rate of workplace violence against employees providing healthcare and social assistance services is substantially higher than private industry as a whole. In the report, GAO also recommended that OSHA assess the need for rulemaking to address this hazard. This RFI seeks public comments on the extent and nature of workplace violence in the industry and the effectiveness and feasibility of methods used to prevent such violence.

Comments and materials may be submitted electronically to www.regulations.gov, the Federal eRulemaking Portal, or via mail, facsimile or hand delivery. See the Federal Register notice for submission details. The submission deadline is April 6, 2017.


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 Issues Advisory on Safety and Health Programs in Construction

The Occupational Safety and Health Administration this week issued Recommended Practices for Safety and Health Programs in Construction to help industry employers develop proactive programs to keep their workplaces safe. The recommendations may be particularly helpful to small- and medium-sized contractors who lack safety and health specialists on staff.

Safety and health programs encourage finding and fixing workplace hazards before they cause injuries, illnesses and deaths. Implementing these programs also helps reduce the financial difficulties these events can cause for workers, their families and their employers, according to the OSHA announcement.

Contractors can create a safety and health program using a number of simple steps that include: training workers on how to identify and control hazards; inspecting the jobsite with workers to identify problems with equipment and materials; and developing responses to possible emergency scenarios in advance.

The recommended practices for a safety and health program are flexible and can be adjusted to fit small and large construction companies handling short-term or multi-year projects, OSHA says. Working with employees to implement a program can offer other benefits including improvements in production and quality; greater employee morale; improved employee recruiting and retention; and a more favorable image and reputation among customers, suppliers and the community.

These recommendations are advisory only and do not create any new legal obligations or alter existing obligations created by OSHA standards or regulations.


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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OCR Trebles Its HIPAA Violations Fines in FY 2016

The Office for Civil Rights (OCR) shattered all monetary settlement records for violations of the HIPAA (Health Insurance Portability and Accountability Act) privacy, security and breach rules in the fiscal year ended this past Sept. 30, according to a study by the law firm McDermott Will & Emery.

In fiscal 2016, OCR socked companies $25,6 million for HIPAA violations, up from a measly $7.9 million the year before, the study found.

OCR, the HIPAA enforcement arm for the Department of Health and Human Services (HHS), also reached an additional 13 settlements known as “resolution agreements.” OCR had never before resolved more than seven HIPAA cases in a year.

The three HIPAA rules protect consumers’ protected health information (PHI), but by federal law, individuals have no right of legal action against companies for violating their PHI. The 2013 HIPAA Omnibus Rule, however, did cede to the states the power to allow such individual action.


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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DOL Appeals Overtime Rule Injunction with Scant Chance It Will Be Heard

The Department of Labor (DOL) has appealed the Texas federal judge’s nationwide injunction blocking the agency’s new overtime rule that was set to take effect on Dec. 1.

Unless an expedited appeal is granted, which is not done very often, the 5th Circuit Court of Appeals in New Orleans won’t receive the relevant documents from Texas for a couple of weeks. After that, there is generally a 30-day period for both sides to file briefs, which takes the whole process past the Jan. 20 inauguration of Donald Trump as the next president.

The president-elect is not likely to support the appeal.

To get an expedited hearing, the DOL must offer a solid reason for the hurry-up, and legal scholars doubt a change of administration would trigger a yes answer from the court.


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 Extends Commentary Period on Revisions in Standards

The Occupational Safety and Health Administration (OSHA) is extending the comment period for its proposal to revise provisions in the agency’s recordkeeping, general industry, maritime and construction standards.

Originally scheduled to expire Dec. 5, 2016, the comment period will be extended to Jan. 4, 2017, to allow parties more time to review the rule and collect necessary information and data for comments.

The agency is revising provisions in its standards that may be confusing, outdated or unnecessary.

Individuals may submit comments electronically via the Federal eRulemaking Portal at www.regulations.gov. Comments also may be submitted by facsimile or mail. The deadline for comments is Jan. 4, 2017.


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 Recordkeeping Rule: This Dec. 1 Start Date Will Stand

The Occupational Safety and Health Administration (OSHA) yesterday escaped the curse of Texas judges and Obama administration regulations when a federal court in the Lone Star state refused to place an injunction on the agency’s new recordkeeping rule, which will now take effect on Dec. 1.

OSHA had twice delayed the rule’s start date in light of resistance, both legal and administrative, after a trade group lawsuit was filed in July.

The rule being challenged, Improve Tracking of Workplace Injuries and Illnesses, mostly goes into effect in 2017, but its anti-retaliation provisions now commence Dec. 1.

The main thrust of the regulation, requiring businesses with 250 or more employees to report workplace injuries and illnesses electronically, will become mandatory on Jan. 1, with the first reports due by July 1. (Certain “high risk” industries with between 25 and 249 employees are also affected.)

Despite the court’s refusal to issue an injunction, a trial over the underlying issues — whether OSHA exceeded its statutory authority and/or violated the Administrative Procedure Act (APA) — is still on the docket.

Last week, a Texas federal judge placed a nationwide injunction against the new “white collar” overtime rule (“strike two”), after a year earlier another Texas judge had effectively ended the Obama administration immigration edicts (“strike one”). OSHA is still a the plate, legally.


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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Poll Shows Widespread Support for Obamacare Overhaul, Possible Replacement

While President-elect Donald Trump announced key appointments to posts responsible for the nation’s health care policies, a Gallup poll continued a yearslong indication of public discontent with Obamacare.

Some 53 percent of those polled in November dislike the Affordable Care Act (ACA) while only 42 percent approve, figures relatively unchanged since the ACA passed in 2010 and the exchanges opened in 2014. In addition, 37 percent of those polled want the legislation repealed while another 43 percent favor keeping but overhauling the program.

From his Eastern White House-to-be in New York (aka Trump Tower), the president-elect and his staff announced that Congressman Tom Price (R., Ga.), a former orthopedic surgeon who has long criticized federal overreach in health care, would be nominated for secretary of the Department of Health and Human Services (HHS).

Shortly thereafter came the announcement that Seema Verna, a consultant who helped Vice-President-elect Mike Pence when he was governor of Indiana negotiate a sweeping Medicare deal, would be put forth as nominee for the head of the Centers for Medicare and Medicaid Services (CMS), which directly administers Obamacare.


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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