All posts by stu

Construction, OSHA, Safety

Construction Silica Regulation delayed until Sept 23, 2017

WASHINGTON – On April 6, the U.S. Department of Labor’s Occupational Safety and Health Administration announced a delay in enforcement of the crystalline silica standard that applies to the construction industry.  The 90 day delay will be used for additional outreach and development of educational materials and guidance for employers.  Originally scheduled to begin June 23, 2017, enforcement will now begin Sept. 23, 2017 for construction employers.  The new OSHA regulations create a significantly lower permissible exposure limit and require the implementation of specific dust controls for certain operations as provided in regulations Table 1.  In addition, construction employers must comply with the standard’s other requirements, including exposure assessment, medical surveillance, and employee training.

Crystalline silica is a common material found in many workplace operations such as cutting, sawing, drilling or crushing of concrete, brick or stone, or operations using sand products such as sandblasting and hydraulic fracturing.  Among the industries most likely to be affected are (1) construction; (2) concrete products; (3) ready mix concrete; (4) stone and stone products; and (5) abrasive blasting.   General industry will be affected starting in 2018, and the new regulations cover over 30 pages.  OSHA’s Crystalline Silica web page provides a good source of information.  The most challenging change posed by the new rule is the new Permissible Exposure Limit (PEL) of 50 micrograms of respirable crystalline silica per cubic meter of air (50 µg/m3) averaged over an eight-hour day.  Employers will be required to maintain, through engineering controls or respiratory protection, exposures below the 50 µg/m3 PEL.

Florida employers can attend a free one-day training session intended to educate front line employees and foreman about OSHA’s new silica standard for the construction industry, presented by the USF OSHA Training Institute. Sign up online for the upcoming classes in Tampa, Daytona, Orlando, West Palm and more.

Consultstu LLC provides fractional HR and safety services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Americans with Disabilities Act, Disabilities, EEOC, Wellness program

Wellness Program Lawsuit Settled, Employer Pays $100,000 and Changes Program

MINNEAPOLIS — On April 5, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it has resolved its lawsuit against Orion Energy Systems, a Wisconsin lighting company after it challenged its wellness program under the Americans with Disabilities Act (ADA).  The lawsuit also alleged that Orion Lighting retaliated against an employee who objected to the wellness program by terminating her.

According to the EEOC, Orion instituted a wellness program that required medical exams and made disability-related inquiries.  Employees were required to complete a health risk assessment, self-disclose their medical history and have blood work performed.  The program also included a fitness component under which employees were required to use a Range of Motion Machine (or ROM) in Orion’s physical fitness room, and fill out a medical history form.   The medical exam and disability-related inquiries which were part of Orion’s wellness program were not job-related and consistent with business necessity.  When an employee, Wendy Schobert, declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert.  The EEOC alleged that shortly thereafter, Orion fired Schobert.

The EEOC filed its lawsuit in U.S. District Court for the Eastern District of Wisconsin (EEOC v. Orion Energy Systems, Inc., No. 14-CV-1019 E.D. WI).  During litigation, the district court rejected the employer’s argument that the insurance safe-harbor provision in the ADA immunizes wellness plans from scrutiny under the Americans with Disabilities Act (ADA).  The court concluded that the EEOC’s recently issued regulations on the ADA’s safe-harbor provision were within the EEOC’s authority and further held that the safe-harbor provision did not apply.  The parties agreed to settle the dispute prior to trial and entered a consent decree.  Under the consent decree, Orion agreed to pay $100,000 to Schobert and agreed that it will not maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations.

New EEOC rules published on May 17, 2016, under the Americans with Disabilities Act (ADA) require employers who offer wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.  Sample Notice for Employer-Sponsored Wellness programs.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Compensation, Manager, Overtime, Wage and Hour

Assistant GMs at Wawa Sue for Overtime in NJ, PA

CAMDEN, NJ – In late January 2017, four (4) former Wawa employees filed a proposed class-action lawsuit contending the firm improperly denied overtime pay to some workers at its convenience stores.  The men contend Wawa’s pay practices for assistant general managers (AGMs) violate federal and state laws in New Jersey, Pennsylvania, and Maryland because their primary duties are “manual in nature.”  The lawsuit alleges that Wawa fails to budget enough money for hourly store clerks (who receive overtime pay) to complete all necessary tasks, so assistant general managers typically handle chores like operating cash registers, making hoagies and stocking shelves.  Wawa operates more than 730 stores in six states.  One of the plaintiff’s alleged that he typically worked for 50 to 55 hours per week, but was paid for 40, according to the suit.  He also stated that the AGM duties did not include “hiring, firing, disciplining or directing the work of other employees, and exercising meaningful independent judgment.”  The lawsuit is a reminder that there has been an explosion of wage and hour lawsuits around the country and challenging the exemptions of assistant general managers and store managers.

Under the Fair Labor Standards Act, a general (or store) manager is an exempt executive employee when he/she satisfies the following test:

  • Compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
  • Primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
  • Customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  • Have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.  Read the DOL Fact Sheet.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Disabilities, EEOC, FMLA, Reasonable Accomodation

Employer must consider Reasonable Accommodations after FMLA expires

On March 3, 2017, Real Estate Services giant Cushman & Wakefield, headquartered in Chicago), agreed to a $100,000 settlement with the EEOC to resolve a disability lawsuit involving an Administrative Assistant with breast cancer.  A nine (9) year employee requested a medical leave of absence under the Family and Medical Leave Act (FMLA) for breast cancer treatment.  As a reasonable accommodation, the employee requested to return to work on a part-time basis while she underwent treatment and advised the company that she might need additional unpaid leave after her surgery.  The EEOC lawsuit alleged that Cushman & Wakefield fired the employee (on or about the date her FMLA leave expired) instead of allowing her to work part-time or providing another reasonable accommodation that would have allowed her to remain employed. Prior to the expiration of FMLA, the employee submitted a return to work letter from her oncologist permitting part-time work (up to 25 hours per week).  The Company stated that it could not accommodate her part-time schedule request. The ADA requires that employers provide reasonable accommodations to qualified individuals with disabilities, such as modified work schedule or unpaid leave.  Compliance with the FMLA, and not considering the ADA, does not meet employer obligations.

In addition to the cash settlement, Cushman & Wakefield agreed to:

  • revise and distribute to all employees a reasonable accommodation policy, which lists part-time and unpaid leave as examples of accommodations.
  • annual training to all location managers, supervisors and HR personnel
  • inform new employees about reasonable accommodation policy
  • report to EEOC on how it handles employee complaints
  • post notice regarding settlement

Read the EEOC’s Complaint and Jury Trial Demand (Case 1:16-cv-02788-JKB) Northern District of Maryland.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Compensation, Employee benefits, Recruiting, Retention

What the most desired employee benefits in 2017?

Employee benefits are important to attract quality employees.  As the economy continues to improve in 2017, Florida’s small and mid-sized businesses must recognize that a competitive benefits package is necessary to attract and retain the right employees and fill critical positions.   If your company is not a high tech company and not trying to hire code writing millennials – do you need to even consider things like unlimited vacation, professional chefs, onsite massages, haircuts and free snacks and energy drinks?  In mid-February 2017, the Havard Business Review (HBR) reported on a survey that asked 2,000 U.S. workers, in a variety of age groups, to provide their level of importance for 17 common employee benefits.  How heavily would each benefit weigh on their decision between a high paying job and a lower paying job with more perks and benefits.  Survey respondents were asked to say whether the specific employee benefit had “some consideration” or  “heavy consideration” when taking a new job.

Here are the top fourteen (14) most valued benefits (based on the total % of heavy and some consideration from respondents) to convince a job candidate to choose a company:

  • Better health, dental and vision insurance – 88%
  • More flexible hours – 88%
  • More vacation time – 80%
  • Work from home options – 80%
  • Unlimited vacation – 68%
  • Student loan assistance – 48%
  • Tuition assistance – 44%
  • Paid maternity and paternity leave – 42%
  • Free gym membership – 39%
  • Free day care services – 39%
  • Free fitness/yoga classes – 33%
  • Free snacks – 32%
  • Free coffee – 30%
  • Company-wide retreats – 26%

In summary, employee benefits that impact a person’s lifestyle and finances (vacation, time off, insurance) are the most coveted by employees, while the in office freebees and goodies (food, snacks and drinks) are nice but do not drive decisions.  The survey organizers also determined that women were more likely to prefer family benefits like paid parental leave and free day care.  Men were more likely than women to value team building events and office snacks.  Both genders valued fitness related perks – but women preferred free fitness and yoga classes and men preferred on-site gyms and free gym memberships.   Overall, women (more than men) rated employee benefits as having a heavy impact on their employment decision, especially on insurances, flexible hours and work from home options.

Read the article from the Harvard Business Review.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Drug Free Workplace, EEOC, Opioids, Safety

Misuse of Prescription Medication Impacts 70% of Businesses

Itasca, IL – This month, the National Safety Council (NSC) released a survey showing that extent of opioid misuse in the United States, that should concern all business owners.  More than 70% of U.S. employers are feeling the direct impact of prescription drug misuse in their workplaces.  The NSC states that it is the first of its kind in the nation.  Most employers believe that prescription drug misuse is a disease that requires treatment, but most agree that misuse of prescription medication is also a justifiable reason to fire an employee.

Drug poisonings, largely from opioid painkillers, now eclipse car crashes as the leading cause of preventable death among adults.  Nearly half of Americans are personally impacted by prescription drug addiction, with 44% knowing someone who is addicted to a prescription pain reliever.  Seventy-five percent of individuals struggling with a substance use disorder are employed, revealing that there is an often hidden epidemic that many employers are not sure how to address.

Other key findings from the NSC survey include:

  • 19% of employers feel “extremely prepared” to deal with prescription drug misuse in the workplace
  • Just 13% are “very confident” that employees can spot the signs of misuse, but 76% do not offer training to help close that knowledge gap
  • 81% of respondents’ policies lack a critical element of an effective drug-free workplace program
  • 41% of employers are not testing for synthetic opioids
  • Although 88% of employers are interested in their insurer covering alternatives to pain relief treatment so that employees can avoid taking opioids, but 30% of those employers will not act on that interest

Employers can take steps to evaluate their drug-free workplace and address potential opioid abuse.

  1. Add prescription drug testing to traditional illicit drug testing.  A standard opioid screen will not detect methadone or oxycodone.  Discuss options with your collection site, and amending your policy.
  2. Develop procedures regarding how suspected non-medical prescription drug use will be identified, evaluated, treated and the conditions for continued employment.  How will suspected non-medical prescription use be handled and the conditions that need to be met before an employee can return to work.
  3. Educate management and supervisory staff about the signs of nonmedical prescription drug use and the procedures to follow to help an employee who is suspected to have a problem.
  4. Review EEOC guidance on prescription drug use and know how to differentiate between legal and non-medical prescription drug use.
  5. Consult a knowledgable HR or legal advisor before taking adverse employment action against an employee with a valid prescription for an opioid or other narcotic medication.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

EEOC, Pregnancy, Reasonable Accomodation, Title VII

Can a pregnant employee use hazardous chemicals at work?

Employers are concerned about the well-being of employees.  Companies are required to follow hundreds of federal and state safety rules, including OSHA regulations, and are financially responsible for workplace injuries and illnesses suffered by employees. So, it is not surprising that company owners and managers are concerned for the well-being of pregnant employees at work.  What if a pregnant employee wants to continue working even though she is regularly using a hazardous chemical that may cause a risk to her and her unborn child?  Rooms to Go Furniture Corporation, a Florida company with a nationwide network of retail stores and distribution centers, recently settled an EEOC complaint (and agreed to pay $55,000 and provide other relief) to settle a pregnancy discrimination lawsuit (Equal Employment Opportunity Commission v. RTG Furniture Corp. of Georgia, Civil Action No 5:16-CV-00663-BO).  The Company fired a pregnant employee from her job because she was required to use lacquer thinner, and the Safety Data Sheet (SDS) stated that it posed a risk to pregnant women and unborn children.

According to the EEOC’s complaint, the company hired a Chantoni McBryde on June 1, 2015 and assigned her to work as a shop apprentice at the company’s temporary training facility in Dunn, N.C. The job required the use of various chemicals to repair furniture. On June 3, McBryde informed the company’s shop trainer that she was pregnant. Later that same day, McBryde was called into a meeting with the company’s regional shop manager and others and was asked to confirm that she was pregnant. The EEOC said that during the meeting, the regional shop manager showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde.  The EEOC alleged McBryde was told that because she was pregnant, she could no longer work at the facility.

What can an employer do in such a situation?  Removing a pregnant employee from a job because of a concern for her safety is not permitted under  Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA).  These laws prohibit employers from terminating workers because they are pregnant. In short, pregnant employees have the right to make their own decisions about working while pregnant, including the risks they assume.  First, once the pregnancy is disclosed, the company may speak to the employee about the chemical exposures and workplace safety.  Due to current EEOC accommodation rules, discuss her duties involving those chemicals and if there are ways to minimize her exposure, or temporarily adjust her work.  Second, the company should provide her with a copy of the SDS sheet so that she can discuss the exposure with her doctor.  If there may be a potential health concern, it is up to the woman and her doctor to evaluate.  A company may not impose paternalistic notions on a pregnant employee, even though it wants the best for the employee’s health. Lastly, the company should verify that it is fully complying with the Hazard Communication regulation (1910.1200) under OSHA, and providing all necessary personal protective equipment (PPE) to all employees using these chemicals.

RTG entered into a three-year consent decree requiring it to develop and implement a policy that prohibits pregnancy-based discrimination.  It also requires the company to conduct annual training for employees, supervisors, and managers at certain facilities on Title VII and its prohibition against pregnancy discrimination in the workplace, and provide periodic reports to the EEOC.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Medical Exams, OSHA, Record Keeping

OSHA Recordability for employee injuries – test your knowledge

The OSHA general recordability criteria are listed in Section 1904.7 of the Code of Federal Regulations (CFR), and every non-exempted employer should carefully review the criteria so that the requirements are followed, but that injuries are not over reported.  Over-reporting of employee injuries will create a higher injury rate, and may lead to an OSHA inspection or loss of contracting opportunities with large companies or municipalities that consider injury rates when awarding construction contracts. An injury is recordable if it results in any of the following: (1) death, (2) days away from work, (2) restricted work or transfer to another job, (4) medical treatment beyond first aid, (5) loss of consciousness, or (6) a significant injury or illness diagnosed by a physician or licensed health care professional. Test your knowledge on these twelve events and determine if the employee injury is recordable.

  1. Is an injury recordable if a worker is injured on Friday and comes back to work Monday?  Yes, but only if medical provider states employee should not work or perform restricted work over the weekend (even those are no work days).
  2. What is the maximum number of days away from work to record? 180 days.
  3. Do I stop counting missed days if an employee leaves the company? Yes, if he/she leaves for a reason other than the injury (such as term for positive drug test, or taking another job) you stop counting.
  4. If a doctor prescribes non-prescription medication (over the counter), is that recordable? No.  Non-prescription medication should be preferred, if effective.
  5. Are chipped or broken teeth recordable? Yes, these cases are considered significant by OSHA if diagnosed by a health care professional.
  6. What about an employee that complains of muskoskeltal soreness or pain from work activity, and company assigns lighter duty? No, if a doctor does not restrict the employee’s job functions (full release) and the doctor only administered first aid and no prescriptions were written.
  7. Is surgical glue used to close a wound recordable? Yes, surgical glue is a wound closing device. All wound closing devices except for butterfly and steri-strips are by definition “medical treatment,” because they are not included on the first aid list.
  8. If an employee slips and falls on the way to work on company property, is this recordable? Yes, company parking lots and sidewalks are part of the employer’s establishment for recordkeeping purposes.  The event does not meet any of the work-related exceptions contained in 1904.5(b)(2). The employee was on the sidewalk because of work; therefore, the case is work-related regardless of the fact that he had not actually checked in.
  9. What if 2 employees get into a fight in the company parking lot, and one employee breaks his arm, is that recordable? Yes, the company parking lot is considered the employer’s establishment, and there is no exception for workplace violence events.  Even though it happened before work, it is still recordable.
  10. If an employee bumps his knee and it told by his physician that he may stay out of work until MRI, but later MRI shows no injury to the knee – can this injury be deleted from the 300 log? No, the event met the definition of recordability at the time because the employee had sustained a work-related injury–a bruised knee–involving one or more days away from work. A subsequent MRI result does not change these facts.  MRI was not a basis for lining out the entry.
  11. Which of the following is recordable? X-rays (no, not included in medical treatment); non-prescription medication (no, first aid); non-rigid means of support, such as knee wrap or back belt (no, first aid); removing splinters by irrigation or tweezers (no, first aid); drinking fluids following heat stress (no, first aid); fractured toe (yes, even with no medical treatment because it is significant); burns (yes, if more serious and treated with prescription cream or other medical treatment).
  12. If an employee’s signs and symptoms (from an injury or illness) disappear for a day and then re-surface the next day, is this a new case? No, an employee has “recovered completely” from a previous injury or illness, when he or she is fully healed or cured.  Due to the short time, the evidence supports the fact that the injury was not fully healed.  The employer must use his best judgment based on factors such as the passage of time since the symptoms last occurred and the physical appearance of the affected part of the body.

Check out the latest OSHA Recordkeeping  Handbook for Employers and review other important interpretations.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

CHIP Notice, Department of Labor, Employee benefits, Group Health Insurance

New updated CHIP model notice released in 2017

In February 2017 the Department of Labor issued an updated model notice for employers to provide information on eligibility for premium assistance under Medicaid or the Children’s Health Insurance Program (CHIP) is now available for employers.

Employers that provide insurance coverage in states with premium assistance through Medicaid or CHIP must inform employees of potential opportunities for assistance in obtaining health coverage.  The CHIP notice must be provided annually before the start of each plan year.  Most employers are given the model CHIP notice from their employee benefits consultant.  An employer may provide the notice applicable to the state in which an employee resides concurrent with the furnishing of either: (1) health plan eligibility materials; (2) Open enrollment materials; or (3) in the Summary Plan description.

The updated model notice includes information on how employees can contact their state for additional information and how to apply for premium assistance, with information current as of January 31, 2017.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

I9 Form, Immigration, New Hire, USCIS

USCIS publishes new Handbook for Employers (M274) on Completing the I9 Form

The USCIS has released an updated Form I-9 Handbook for Employers (M-274) and posted it on its website January 22, 2017. The updated manual provides updated guidance on the new form I9, that was updated November 2016.  It offers valuable information to employers on completing and retaining the Form I-9.  All employers should download and retain the new M-274 Manual and refer to it if questions arise.  Click here to access the updated handbook.

The Handbook answers common questions on the I9 form – so your I9 forms are always correct. For instance: How are minors (under age 18) handled? What to do about future expiration dates? When are you required to reverify the Employment Authorization for a current employee? How to make corrections to errors on the I9?  And many more questions.

There is also guidance to federal contractors on the use of E-Verify, the web-based verification system.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

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