HR Quick Scoops

Insights and updates from our members, for our members

Let’s talk about heat! At least, OSHA is …

On April 8, 2022, the Occupational Safety and Health Administration issued a National Emphasis Program on Outdoor and Indoor Heat-Related Hazards. You can access OSHA’s Instruction sheet here.

What does this mean? It is a part of OSHA’s efforts to combat heat-related illnesses and injuries. OSHA intends to focus on targeted enforcement, compliance assistance, and outreach efforts to encourage employers’ early interventions to prevent heat-related illnesses and deaths.

As part of the campaign to reduce heat-related illnesses and deaths, OSHA had also published advance notice of a proposed new rule which would relate to heat injury and illness prevention in outdoor and indoor work settings. OSHA explained its reasoning for the rule here:

On October 27, 2021, OSHA published an Advance Notice of Proposed Rulemaking (ANPRM) for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings in the Federal Register. With this publication, OSHA is beginning the rulemaking process to consider a heat-specific workplace standard. A standard specific to heat-related injury and illness prevention would more clearly set forth employer obligations and the measures necessary to more effectively protect employees from hazardous heat. The ultimate goal is to prevent and reduce the number of occupational injuries, illnesses, and fatalities caused by exposure to hazardous heat.

The Instruction document from OSHA summarized its targeted enforcement process as follows.

To increase the likelihood of preventing heat-related illnesses and deaths and make efficient use of OSHA resources, compliance safety and health officers (CSHOs) who are investigating for other purposes, shall open or refer a heat related inspection for any hazardous heat conditions observed, recorded in the OSHA 300 logs or 301 Incident Reports, or where an employee brings a heat related hazard(s) to the attention of the CSHO (such as, employees or temporary workers being exposed to high temperature conditions without adequate training, acclimatization or access to water, rest, and shade).

What are some of the outdoor and indoor industries where heat-related illnesses have occurred? While certainly not limited to the industries listed below, this chart from OSHA’s website provides some insight as to certain industries which are conducive to these heat-related hazards.

Outdoors Indoors
Agriculture Bakeries, kitchens, and laundries (sources with indoor heat-generating appliances)
Construction – especially, road, roofing, and other outdoor work Electrical utilities (particularly boiler rooms)
Construction – roofing work Fire Service
Landscaping Iron and steel mills and foundries
Mail and package delivery Manufacturing with hot local heat sources, like furnaces (e.g., paper products or concrete)
Oil and gas well operations Warehousing

CDC Releases Calculator for Determining Quarantine or Isolation Period

Not to be outdone by the CDC Quarantine flowchart we posted back in the winter, the CDC now has a calculator people can use to determine how long they need to quarantine or isolate after an exposure or a positive COVID test. You can reach the calculator here.

The calculator includes the phrase “up to date” on COVID vaccinations. According to the website, “[u]p to date means a person has received all recommended COVID-19 vaccines, including any booster dose(s) when eligible.”

Is your organization requiring employees and/or new hires to be vaccinated? How is your organization handling the booster in connection with the vaccination requirement? Comment below!

DOL Announces Enforcement Initiative for Warehouse and Logistics Industries

With many eyes on supply chain issues across the country, the Department of Labor announced a new initiative to ensure that employers in the warehouse and logistics industries are complying with federal laws and regulations.

In a press release, the DOL said:

The department’s Wage and Hour Division has announced a Warehouse and Logistics Worker initiative designed to help ensure that workers in these industries, including delivery drivers, truck drivers and others are:

  • Paid all their legally earned wages, including minimum and overtime.
  • Safe from workplace harassment and retaliation when they claim their rights.
  • Not prevented from taking time off from work under the Family and Medical Leave Act.

The initiative will also target misclassification of employees as independent contractors, a common occurrence in both industries that denies workers their full wages and legal protections.

What exactly does this initiative mean? Per the DOL:

The Wage and Hour Division’s initiative will use education, outreach and vigorous enforcement to increase compliance and reduce industry violations. It will also identify key stakeholders, such as worker advocacy groups, employers and employer organizations to ensure the initiative’s effectiveness.

The link to the initiative takes you to the DOL’s Fact Sheet #10 concerning Wholesale and Warehouse Industries under the Fair Labor Standards Act. The Fact Sheet calls out common issues in these industries, which we can predict will be key areas of focus as the DOL engages in its “vigorous enforcement.”

There are some problems and misconceptions which Wage and Hour investigations commonly disclose in the wholesale and warehouse industry. These include:
The misapplication of the executive or administrative exemptions to non-exempt persons, such as clerical
workers, working foremen, dispatchers, and inside salespersons.

• Employment of underage minors, especially in the operation of fork lifts and paper balers.
• The misconception that salaried employees need not be paid overtime.
• Failure to pay employees for all hours suffered or permitted to work, including time spent taking
inventory, completing paperwork, etc. beyond the normal schedule.
• Failure to maintain time records on salaried or piece rate employees.
• Giving compensatory time off in lieu of overtime pay.
• Considering certain employees to be “contract labor” and thus, not covered by the Act’s provisions.
• Deductions made for reasons other than board, lodging, etc., in overtime work weeks.

And this list is just pertaining to wage and hour, not the Family and Medical Leave requirements which the DOL also enforces.

If your organization is in the warehouse or logistics industries, you will want to pay close attention to ensuring that your organization’s wage and hour processes and FMLA administration are in compliance with federal law. If you have any questions or would like some assistance confirming your organization’s compliance with these matters, contact Quick Scoops at hotline@erahr.org.

Also, don’t forget that we will have a speaker on wage and hour issues at our upcoming Employment Law Update, which you can attend in person (with catered coffee and a boxed lunch) or remotely! Go here for more information on the event and how to register.

Dealing with Employee Illnesses – Example of What Not to Do

A frequently asked question on hotline is what to do when an employee suddenly needs to be absent due to an illness. The hotline will discuss best practices in relation to the Family and Medical Leave Act, the Americans with Disabilities Act, and the organization’s own policies on sick leaves and medical/personal leaves of absence.*

Consider an example of what not to do in this situation. The EEOC just announced a settlement between joint employers (relating to a car dealership) and a title clerk, where she missed several days of work due to a sudden illness. The title clerk told her employers about her hospitalization and that she was being tested for cancer. As reported by HR Dive here,

One day before she was to return with a medical release, the businesses terminated her employment. They provided her a letter telling her to “focus on her health” and affirmed that her termination was not performance-related, the EEOC release stated.

The settlement was $150,000, according to HR Dive.

The HR Dive article also provided a link to a publication from the National Business Group on Health and the American Cancer Society which provides tips for HR professionals on how to support their employees who have been diagnosed with cancer. What do those organizations recommend?

  1. Review company policies, procedures, and benefits so that you are prepared to answer questions the employee may have about medical/drug coverage, leave, EAPs, accommodations, wellness programs, and any community-based resources.
  2. Support and encourage the employee, and listen.
  3. Provide information about possible options such as flexible work schedules and leaves of absence. Be prepared to help the employee determine how to share the news with coworkers and managers.
  4. Be knowledgeable about how to comply with the ADA and FMLA (and any state-specific laws, such as paid sick leave options).
  5. Check in with the employee during treatment to see whether their needs have changed in terms of scheduling and leaves.
  6. Be aware of the potential needs after treatment is finished.

The hotline stands ready to assist if you need to talk through these kinds of situations. Click here to reach us or send a note on the web.

*Remember our usual disclaimer – the hotline does not provide legal advice.

OSHA Deadline Approaching for Electronic 300A Data Reporting

Finally, a Quick Scoops post about OSHA which doesn’t mention the word “vaccines.”

This is a quick reminder that OSHA’s deadline for electronically reporting 2021 Form 300A data is March 2, 2022.  This only applies to certain employers, as noted in bold below.

Below is OSHA’s news release.

WASHINGTON – The U.S. Department of Labor’s Occupational Safety and Health Administration reminds employers that the agency began collecting calendar year 2021 Form 300A data on Jan. 2, 2022. Employers must submit the form electronically by March 2, 2022.

Electronic submissions are required by establishments with 250 or more employees currently required to keep OSHA injury and illness records, and establishments with 20-249 employees classified in specific industries with historically high rates of occupational injuries and illnesses.

Visit the Injury Tracking Application Electronic Submission of Injury and Illness Records to OSHA for more information and a link to the Injury Tracking Application.

Learn more about OSHA.

 

Supreme Court Blocks Enforcement of OSHA Vax-or-test ETS, Allows CMS Vaccination Mandate

The Supreme Court of the United States today issued a per curium order staying enforcement of the OSHA vaccine-or-test ETS applicable to employers with 100 or more employees. This means that the Supreme Court of the United States has stopped OSHA from enforcing the vaccine-or-test Emergency Temporary Standard (ETS) while the case proceeds in the lower court. You can access a copy of the opinion here: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf. We will send out a more detailed analysis of the Court’s opinion later. In the meantime, we wanted to make sure everyone knew today that OSHA cannot enforce the ETS while the lower court hears the full fledged case on the merits.

 “OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought.”

In a separate opinion, the Supreme Court allowed the vaccination mandate applicable to facilities receiving Medicaid and Medicare funding to proceed.

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