Moving forward with continuing efforts to strengthen employees' voices in the workplace, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has announced a major restructuring of its Office of the Whistleblower Protection Program. The program will now report directly to the agency's Office of the Assistant Secretary instead of to its Directorate of Enforcement Programs.

This move represents a significantly elevated priority status for whistleblower enforcement, which now will be overseen directly by Assistant Secretary of Labor David Michaels, who heads OSHA.

"The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers' most essential legal protections. OSHA's internal improvement initiatives, including this realignment, demonstrate the agency's steadfast commitment to strengthening a program that is critically important to the protection of worker rights," said Michaels.

OSHA first announced that it would restructure its whistleblower program on Aug. 1, 2011, as part of the agency's multifaceted plan for strengthening the enforcement of 21 whistleblower laws under its jurisdiction. Implementation of this plan began with the fiscal year 2012 budget as OSHA established a separate budgetary line item for the whistleblower program to better track and hold accountable its activities and accomplishments.

The Affordable Care Act (ACA) prohibits health plans from imposing a lifetime dollar limit on most benefits received by Americans in any health plan renewing on or after Sept. 23, 2010.  While some plans already provided coverage with no limits on lifetime benefits, millions of Americans were previously in health plans that did not.  

According to the Kaiser Family Foundation’s Employer Health Benefits Survey, 59 percent of all workers covered by their employer’s health plan in 2009 had some lifetime limit placed on their benefits. In addition, 89 percent of people with individually purchased coverage had a lifetime limit on their benefits.

The Department of Health and Human Services (HHS) recently estimated the number of Americans receiving these new protections, combining results from the 2009 Kaiser employer survey with those from America’s Health Insurance Plans (AHIP) report with data from the 2009 to 2011 versions of the Current Population Survey (covering calendar years 2008-2010).

Overall, HHS estimated that 70 million persons in large employer plans, 25 million persons in small employer plans, and 10 million persons with individually purchased health insurance had lifetime limits on their health benefits prior to the passage of the ACA.  These 105 million Americans now enjoy improved coverage without lifetime limits.

Among the 105 million Americans for whom lifetime limits have been removed as a result of the Affordable Care Act, 75.3 million are non-Latino White, 11.8 million are Latino, 10.4 million are African-American, 5.5 million are Asian, and approximately 500,000 are American Indian or Alaska Native.  Approximately 28 million of those benefiting are children, with the remainder of the 105 million split almost equally between adult men and adult women.

The U.S. District Court for the District of Columbia has ruled that the newly mandated National Labor Relations Act (NLRA) Employee Rights Poster is good to go as is, but at the same time it also ruled that the National Labor Relations Board (NLRB) cannot enforce its proposed blanket penalties.

The NLRB poster was announced with three components: the poster itself, a provision to make it an unfair labor practice not to post it, and another provision to extend the six-month statute of limitations on unfair labor practices if a company fails to post it. The court in its ruling today threw out the last two components, but said the NLRB was free to enforce the posting on an individual basis (for instance, if a workforce decides to unionize and the poster is not on display).

Unless the NLRB opts to delay the implementation date while it pursues a legal challenge, the NLRA Employee Rights Poster must be on display at virtually every private company in the U.S.A. by April 30, 2012.

The Office of Management and Budget (OMB) has approved a rule setting forth guidelines for determining what is a "reasonable factor other than age" in defense of lawsuits based on the Age Discrimination in Employment Act (ADEA).

The Equal Employment Opportunity Commission (EEOC) crafted the rule to clarify "reasonable factor other than age" defenses for employers facing ADEA lawsuits by employees or former employees who feel harmed or wronged by an employment decision. The EEOC's action came after the Supreme Court had earlier issued its decisions in Smith v. City of Jackson and Meacham v. Atomic Power Laboratories regarding such defenses.

The EEOC is proposing a "balanced approach" based on these factors:

• whether the employment practice and the manner of its implementation are common business practices;
• the extent to which the factor is related to the employer’s stated business goal;
• the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
• the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
• the severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
• whether other options were available and the reasons the employer selected the option it did.

To help employers understand and observe the requirements of the ADEA, Personnel Concepts publishes a comprehensive ADEA Age Discrimination Compliance Kit. Get yours today.

The U.S. Equal Employment Opportunity Commission (EEOC) has issued two revised publications addressing veterans with disabilities and the Americans with Disabilities Act (ADA).

The revised guides reflect changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood — such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.  [Prior to the ADA Amendments Act, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.]

The revised documents are also an outgrowth of a public meeting the EEOC held on Nov. 16, 2011, entitled “Overcoming Barriers to the Employment of Veterans with Disabilities.” In that meeting, the commission heard testimony from a panel of experts on the unique needs of veterans with disabilities transitioning to civilian employment.  The particular challenges faced by veterans with disabilities in obtaining employment has been the subject of increased attention in recent months, as large numbers of veterans return from service in Iraq and Afghanistan.

The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

The Guide for Wounded Veterans answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment.

The U.S. Supreme Court in April will review a case known as Christopher v. GlaxoSmithKline to determine if pharmaceutical sales representatives are exempt from overtime pay because they are outside salespeople, a category defined by the Fair Labor Standards Act (FLSA) of 1938 as exempt.

In Christopher v. GlaxoSmithKline, the 9th Circuit Court of Appeals upheld a district court's ruling that pharma reps are subject to the outside sales representative provision that exempts them from overtime pay. The plaintiffs had argued that they are more like marketers or public relations representatives because they merely dispense product samples to doctors in hopes they prescribe the products to their patients.

The circuit court, however, pointed to GlaxoSmithKline's job description that requires both sales training and sales experience as prerequisites for the job of pharmaceutical sales representative.

The Department of Labor (DOL) has issued interpretations siding with the arguments forwarded by the plaintiffs that they are not sales representatives but just product distributors, who are thus due overtime pay.

SCOTUS will now have the final say.

The first 20 HIPAA (Health Insurance Portability and Accountability Act) security audits have been completed by auditing firm KPMG and will be used to fine-tune the remaining audits this year, announced Leon Rodriquez, director of the Office for Civil Rights (OCR) for the Department of Health and Human Services (HHS). He also announced that, given his office's budget and the capabilities of the auditing firm, it's unlikely that the hoped-for 150 audits will be completed this year, though the number will be "something close to that."

Rodriquez made his comments while attending the Healthcare Systems Information and Management Systems Conference in Las Vegas.

As for initial findings, Rodriquez said: "You really still do have significant security vulnerabilities out there. And sometimes those issues are as fundamental as no evidence of a risk analysis, no policies and procedures and no adequate technical safeguards for data."

Rodriquez said there is "a reasonable likelihood" that the audits will be continued in 2013.

On a related topic, he revealed that the omnibus package of final HIPAA regulations announced for March will be delayed once again. The omnibus package includes the final HIPAA breach notification rule, HIPAA modifications, and the privacy provisions under the Genetic Information Nondiscrimination Act (GINA).

The new Hazard Communication Standard (HCS or HAZCOM) incorporating the Globally Harmonized System of Classification and Labeling of Chemicals (GHS) passed its final hurdle this week when the Office of Management and Budget (OMB) cleared it; it is now expected to be published by the Occupational Safety and Health Administration (OSHA) within two weeks.

OSHA has been working on this new standard for a long time, having first issued a Notice of Proposed Rulemaking (NPRM) in 2006.

Incorporating GHS will mean that chemical companies in the United States will employ the same symbols and wording on their packages as do the other members of the United Nations, all signatories to the GHS.

The Equal Employment Opportunity Commission (EEOC) has prevailed in a lawsuit over a company and its policy that required employees returning from absences to supply a doctor's note verifying the health-related reason. The EEOC argued–and the U.S. District Court for Southern California concurred–that seeking such intimate health information could be a violation of the Americans with Disabilities Act (ADA).

Judge Irma E. Gonzalez wrote that "Dillard's [the department store being sued] policy requiring Ms. Moreno and Ms. Mazon to disclose the condition for which they were being treated was an inquiry tending to disclose a disability and thus prohibited…."

Though the case was decided in California and wouldn't necessarily have any holding elsewhere, it shows that the EEOC would most likely take the same approach to employees involved in similar situations in other parts of the country. In Dillard's case, the two employees were terminated for excessive absenteeism after refusing to reveal their health conditions, though they did furnish physicians' notes simply stating that they were unable to work.

Employers, with the passage of the Americans with Disabilities Amendments Act (ADAAA), the ADA now has more teeth and employees more protection. Keep up to date and in compliance with Personnel Concepts' ADA Amendments Act Compliance Kit.

In a public meeting today at agency headquarters, the U.S. Equal Employment Opportunity Commission (EEOC) approved its Strategic Plan for Fiscal Years 2012-2016. The Strategic Plan establishes a framework for achieving the EEOC’s mission to stop and remedy unlawful employment discrimination, so that the nation might soon realize the Commission’s vision of justice and equality in the workplace. Implementation of the new Strategic Plan will begin in March 2012.

“In approving the Strategic Plan, the EEOC today is taking a significant step toward realizing the Commission’s vision of ending employment discrimination and promoting equal opportunity in the American workplace,” said EEOC Chair Jacqueline A. Berrien. “I am very pleased with the hard work of staff across the agency who provided assistance throughout the planning process, and I look forward to the successful implementation of the plan.”

The Commission voted 4-1 to approve the FY 2012-2016 Strategic Plan. The Plan serves as a framework for the Commission in achieving its mission by focusing on three strategic objectives: strategic law enforcement, education and outreach, and efficiently serving the public. The three strategic objectives each have a number of performance measures detailing outcomes to be achieved during the four year period the Plan is in effect. The different outcomes are designed to measure the Commission’s progress in carrying out its mission in a time of static resources and a growing need for its services.

As an example of the plan’s proposed outcomes, the Strategic Law Enforcement objective includes the development of a new strategic enforcement plan to better leverage the Commission’s resources to “stop and remedy unlawful employment discrimination” and to build on its existing systemic program to remedy discrimination against large numbers of individuals or where the discrimination has a broad impact on an industry, profession, company, or geographic area.