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OSHA Final Rule on Workplace Injury & Illness Reporting

OSHA Last week, OSHA issued a final rule regarding the reporting of workplace hazards. Many employers are already required to keep records of injuries and illnesses. At this time though, little of this information about individual employers is made public. Under the new rule, employers in high-hazard industries that are already collecting data will send it to OSHA for posting on OSHA’s website. OSHA states that the availability of this data will enable employees to choose workplaces where injury risk is lowest, and employers that wish to hire the best workers will make prevention a priority.

Under the rule, employers with 250 or more employees in industries covered by the Recording and Reporting Occupational Injuries and Illnesses regulation must electronically submit information. Employers with 20-249 employees in certain industries must electronically submit more-limited information as well.

New requirements take effect August 10, 2016, with submissions to OSHA beginning in 2017. The obligations to complete and retain injury and illness records under the recordkeeping regulation remain unchanged.

According to the Bureau of Labor Statistics, over three million workers suffer a workplace injury or illness annually. Assistant Secretary Michaels states, “Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace. Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities.”

Tips for maintaining I-9 records

  1. Establish a consistent process for execution of I-9 forms.
  2. On the first day of work, ensure that each new hire completes and signs Section 1.
  3. Review the employee’s documents and confirm that they are on the acceptable document list and look authentic (
  4. While it is not required in all locations, making copies of all documentation provided is a good practice.
  5. Track the expiration of documents that limit the right to work and prepare a tickler system to follow up.  Also, do not keep I-9 documentation in the personnel file.
  6. Retain I-9s and any supporting documents for the later of three years after hire or one year after termination.

Job Descriptions in Relation to the ADA

eeoc-logoOne of my posts from this summer stated that job descriptions are important because they set out expectations about a given position.

Specifically, descriptions are important under the ADA as well. They provide a framework to review whether an applicant with a disability is otherwise qualified to perform the job. They, then, allow the employer to consider what accommodations would be necessary for the applicant to handle the essential functions of the job. That, in turn, leads to clarity on whether accommodation would be reasonable.

The ADA has no express requirement to adopt job descriptions; however, the law requires that applicants and employees be capable of performing the essential functions of the position, with or without reasonable accommodation. When defining essential job functions, the EEOC reviews job descriptions written before an employer advertises a job opening. Thus, employers should be accurate in reflecting those essential functions, and generic wording does not provide sufficient detail when questions arise.  Describing the specific tasks that a position requires allows for compliance with ADA and EEOC guidelines and a basis to defend your actions if you are questioned.

Why Employers Should Develop Job Descriptions

photoJob descriptions are important. They are not specifically required by law or regulation. However, the essential functions of a job must be considered in many contexts such as questions involving disability status or leave.

Job descriptions allow the employer to clarify what responsibility an employee has within the business and how the employee is expected to operate. This information matters from the first interview through the end of employment. Descriptions allow the employer to define relationships and obligations between co-workers and departments or divisions. They can set out educational, training, and skills requirements. They can also be the first place an employer looks to consider coaching, counseling, or evaluation. This information helps the employer evaluate performance for different positions too. Likewise, descriptions tell employees what is expected and serve as a form of communication to outline accountability.


Expanded Scope for New HIPAA Rules

HIPAASeptember 23, 2013.  Today is the day that many of those who use protected health information (PHI) must comply with new Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules, which went into effect 180 days ago.

If you use PHI in your work, hopefully by now you are aware of those changes. For the first time, Privacy and Security rules apply not only to covered entities and business associates, but also to subcontractors who provide services to those business associates. This includes the security breach notification requirements when PHI is compromised.

An HHS press release earlier this year noted, “Some of the largest breaches reported to HHS have involved business associates.”  With the expanded scope of the rules, look for more enforcement actions in the future.

Virginia law on disclosure of employee information

VA photoWhile I don’t practice in Virginia, I have clients who have operations or locations in the Commonwealth.  Virginia has a new law that becomes effective July 1 restricting employers from providing certain personal information of their employees.  The law covers disclosure of current or past employees’ home phone numbers, mobile phone numbers, email addresses, shift times, or work schedules to third parties.

Virginia Code Section 40.1-28.7:4 states that “[a]n employer shall not, unless an exemption . . . applies, be required to release, communicate, or distribute to a third party any current or former employee’s personal identifying information,” which includes the information listed above.

There are four express exemptions in the statute.  Specifically, the statute does not “apply to a release, communication, or distribution of personal identifying information that is:

  1.  Required pursuant to any applicable provision of federal law that preempts the provisions of this section or of state law that requires an employer to release, communicate, or distribute personal identifying information;
  2. Ordered by a court of competent jurisdiction;
  3. Required pursuant to a warrant issued by a judicial officer; or
  4. Required by a subpoena issued in a pending civil or criminal case, or by discovery in a civil case.”

Importantly, the statute is not an express prohibition against an employer’s disclosure of personal identifying information of its employees. By using the language “shall not … be required to release,” the statute appears to give an employer a safe harbor against releasing such information to someone that is requesting it (including, for example, a former employee that requests his or her own information to initiate litigation against the former employer). However, employers who choose to voluntarily disclose personal identifying information of current or former employees do so at their own risk, as such practices may be prohibited under other state or federal laws and regulations. It is recommended, therefore, that companies operating in Virginia be sure to review current employee manuals, privacy practices and human resource policies to ensure that personal identifying information of employees is not being disclosed to third-parties save for in instances set out in the exemptions identified above.

New I-9 Form Required This Week

On March 8, 2013, the U.S. USCISCitizenship and Immigration Services office issued a new two-page I-9 form.  This form has a number of changes from the previous version.  For new hires, employers must start using the form by May 7.  Employers are not required to complete the new form for current employees, provided they have properly completed forms already on file.  The USCIS also released an updated M-274, Handbook for Employers.

FCRA Forms

CFPB logoIf you use a third-party consumer reporting agency for background, credit, or other checks on employees or job applicants, then keep in mind that there are new forms, effective January 1.  The forms were released by the Consumer Financial Protection Bureau.  There seems to be an increase in enforcement related to FCRA notices, which is consistent with increased scrutiny promoted through the Obama administration by government agencies of many employment and compliance requirements.

Tennessee Lawful Employment Act documents

Now that the TLEA has fully phased in and applies to the vast majority of employers in Tennessee (any employer with 6 or more employees), it is important to ensure compliance.  Here are the documents that qualify as acceptable documents for verification compliance:

  • Current, unexpired driver’s license
  • Valid photo registration issues by a State
  • U.S. Birth Certificate (including U.S. certificate of birth abroad)
  • Unexpired U.S. passport
  • U.S. certificate of citizenship or of naturalization
  • U.S. identification or permanent resident card
  • Immigrant or alien registration recognized by Homeland Security

There are some differences in qualifying documents for I-9 requirements.  Also, copies of documents must be retained for the longer of 3 years after hire date or 1 year after termination of employment.

Application of Tennessee Lawful Employment Act

2008 CLE TN flagThe TLEA has been phased in by several steps since its passage in July 2011.  As of January 1, 2013, the law now applies to all employers with 6 to 199 employees.  This law places restriction on employment of illegal aliens and requires Tennessee employers to verify the employment eligibility of persons through review of documents and use of the I-9 form.