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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the hospitality industry: “OSHA Withdraws ‘Fairfax Memo’ – Union Representatives May No Longer Participate in Work Place Safety Walkarounds at Non-Union Facilities.”

Following is an excerpt:

On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a Memorandum to the agency’s Regional Administrators notifying them of the withdrawal of its previous guidance, commonly referred to as the Fairfax Memorandum, permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround representative” during an OSHA workplace investigation. …

Read the full post here.

Complying with employment law has become increasingly difficult given that various states and municipalities have passed legislation that seemingly contradicts federal guidance.[1] One state law that has been in the spotlight is North Carolina’s House Bill 2, the “Public Facilities Privacy and Security Act” (“HB2”), which was passed in an emergency legislative session on March 23, 2016, to overturn a local ordinance that was set to extend anti-discrimination protections to lesbian, gay, bisexual, and transgender (“LGBT”) individuals and would have allowed transgender individuals to use the restroom facilities that corresponded with their gender identity.

There are a number of legal challenges to these laws. Notably, the Department of Justice (“DOJ”) has filed a complaint, in United States v. State of North Carolina et al., against the state of North Carolina, the University of North Carolina (the largest employer in the state), and the North Carolina Department of Public Safety (“DPS”), alleging that they are discriminating against transgender individuals in violation of federal law as a result of the state’s compliance with, and implementation of, HB2.

Separately, Lambda Legal, the American Civil Liberties Union, the American Civil Liberties Union of North Carolina, and Equality North Carolina have jointly filed a lawsuit against North Carolina’s governor (Carcano v. McCrory), challenging HB2 in a North Carolina federal court. The complaint, brought by a student, employee, and professor at three separate North Carolina state colleges, alleges that HB2 is unconstitutional because it violates the Equal Protection and Due Process clauses of the Fourteenth Amendment by discriminating on the basis of sex and sexual orientation and invading the privacy of transgender people. The complaint also alleges that the law violates Title IX by discriminating against students and school employees on the basis of sex. The Carcano complaint alleges that “[e]mployers subject to Title VII also will violate the U.S. Equal Employment Opportunity Commission’s [EEOC’s] decree that discriminating against transgender people with respect to restroom use is impermissible sex discrimination.”

Following the news of these two lawsuits, Governor McCrory issued an executive order affirming the right of private-sector employers to establish their own restroom and locker-room policies. While this executive order alleviates the tension between state and federal law for private employers, public employers and employers that have restroom facilities for customers still face differing standards under state and federal law.

Indeed, the EEOC has offered specific guidance (“EEOC Guidance”) on restroom facility access rights for transgender employees that is contrary to the laws of North Carolina and other jurisdictions. The EEOC Guidance specifically refers to two cases addressing discrimination on the basis of gender identity, both of which offer direction for employers:

  • In Macy v. Dep’t of Justice (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII.
  • In Lusardi v. Dep’t of the Army (Mar. 27, 2015), the EEOC held that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is discrimination on the basis of sex.

The EEOC Guidance states that an employer cannot condition the right to use the restroom corresponding with the employee’s gender identity on the employee undergoing or providing proof of surgery or any other medical procedure, and an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead. See EEOC Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964. Notably, the fact sheet states that contrary state law is not a defense under Title VII (citing to 42 U.S.C. § 2000e-7).

In addition to those protections promulgated by the EEOC, OSHA also recently issued guidance indicating that restroom access is a health and safety matter. Under OSHA’s sanitation standard, 29 C.F.R. § 1910.141, employers are required to allow employees prompt access to sanitary facilities. This standard is “intended to protect employees from the health effects created when toilets are not available.”

The OSHA standards, which laws such as HB2 appear to directly conflict, hold that employees should not be required to use a segregated facility apart from other employees because of their gender identity or transgender status. OSHA guidance also has several “model practices” that “all employees should be permitted to use the facilities that correspond with their gender identity.” OSHA advises that the best policies also provide additional options, which employees may choose, but are not required, to use. These include the following:

  • Single-occupancy gender-neutral (unisex) facilities
  • Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls

The District of Columbia Office of Human Rights issued guidance in early June addressing restroom usage for transgender and cisgender employees. Washington, DC, enacted a law requiring that all single-stall restrooms be gender neutral. Even though this option is available to all employees, the DC guidance reiterates the position of the EEOC and OSHA that employers may not direct transgender employees to use only single-stall restrooms.

What Hospitality Employers Should Do Now

  • Comply with federal law even though it may contradict some state and municipal laws and until there is resolution in either United States v. State of North Carolina et al. or Carcano v. McCrory.
  • Consider creating policies or practices regarding transgender employees’ use of restroom facilities (including following OSHA’s guidance providing numerous restroom options, such as single-occupancy gender-neutral (unisex) facilities), and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
  • Conduct training for human resources and line managers so that they are aware that they may not require transgender workers to use a particular restroom.

A version of this article originally appeared in the Take 5 newsletter “Five Key Issues Facing Employers in the Hospitality Industry.”

[1] While this article focuses on restroom facilities access for transgendered workers, please note that in the hospitality industry, these issues are also relevant with regard to the appropriate use of restroom facilities for customers.

On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) published its long-awaited electronic recordkeeping rule (“final rule”). The final rule creates numerous new recordkeeping obligations and additional administrative burdens for hospitality and other employers. Many employers will now be required to submit injury and illness information to OSHA electronically. OSHA will then attempt to remove identifying information from the records and publish them on a searchable database on its website. The final rule also includes several new anti-retaliation provisions that provide new protections for employees reporting work-related injuries and illnesses.

The Basics

The final rule requires certain employers to electronically submit to OSHA the injury and illness information that they are already required to keep under existing regulations. Specifically, establishments with 250 or more employees that are currently required to keep injury and illness records must electronically submit information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses), and 301 (Injury and Incident Report). Establishments with 20 or more employees but fewer than 250 that conduct work in industries that OSHA considers highly hazardous must electronically submit information from Form 300A annually.

Importantly, hospitality is included in the list of industries that OSHA deemed highly hazardous. Entities within the hospitality industry subject to the requirements of the final rule include a laundry list of facilities, such as hotels, motels, casino hotels, hotel management services, health spas that offer accommodations, and tourist and motor lodges, just to name a few.

The final rule will be phased in. New anti-retaliation protections included in the final rule will become effective by August 10, 2016. All establishments required to submit electronic records must submit their annual Form 300A to OSHA by July 1, 2017. On July 1, 2018, establishments with 250 or more employees must submit Forms 300A, 300, and 301. Establishments deemed highly hazardous with 20–249 employees will continue to submit only Form 300A. Beginning in 2019, the submission deadline will change from July 1 to March 2. OSHA State Plans must adopt rules that are substantially identical to the final rule within six months of its publication.

Hospitality Employers’ Obligations to Employees

Hospitality employers must involve their employees in the injury and illness recordkeeping process by informing them of how to report a work-related injury or illness within the establishment and the procedure used by the employer to report such incidents to OSHA. Employers must establish “a reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately—that is, the procedure cannot have the effect of discouraging employees from reporting a workplace injury or illness. Accordingly, an employer must also inform employees that (1) they have a right to report work-related injuries and illnesses, (2) they will not be discharged or in any manner discriminated against for reporting work-related injuries and illnesses, and (3) the employer is legally prohibited from discharging employees or discriminating against them in any way for reporting a work-related injury or illness.

Hospitality Employers’ New Challenges and Concerns

The final rule presents numerous challenges and concerns for hospitality employers. First, OSHA has stated that it will use the information that it collects as employers comply with the rule to identify new bad actors—if an employer has a higher-than-average injury and illness rate, the chances of its establishment being visited by compliance officers will dramatically increase.

Second, although hospitality employers are required to submit the recordkeeping forms to OSHA on a secure web-based application, if the application is hacked, the personal information of countless employees could be exposed before OSHA has the opportunity to remove such information from the records. Once the forms are received by OSHA, the agency will “scrub” any personal identifiers from them and place them on a publicly available searchable database on OSHA’s website. This step also opens the door to an inadvertent disclosure of private employee information.

Third, the public exposure of work-related injury and illness information gives OSHA another avenue with which to continue its campaign of shaming employers that it believes are bad actors before they are able to defend themselves, as the press will have access to this information.

Fourth, the public dissemination of work-related injury and illness information will aid unions in targeting businesses for unionization—that is, unions will have unfettered access to the lists of businesses that have higher injury and illness rates and may, therefore, find employees more interested in becoming unionized.

Last, the final rule gives OSHA a new weapon against employers—broad discretion to issue citations if the agency considers any part of an employer’s procedures for reporting a work-related injury and illness to be “unreasonable.”

What Hospitality Employers Should Do Now

  • Train employees on the requirements of the final rule and when they go into effect.
  • Ensure that employees understand that they will not be retaliated against for reporting work-related injuries and illnesses and are, in fact, encouraged to report them.
  • Retrain the employee(s) responsible for injury and illness recordkeeping on the basics of recordkeeping and provide thorough training on the final rule with an emphasis on protecting personally identifiable information to the maximum extent possible while remaining in compliance with the new regulatory requirements.

A version of this article originally appeared in the Take 5 newsletter “Five Key Issues Facing Employers in the Hospitality Industry.”

Our colleague Valerie Butera, a Member of the Firm at Epstein Becker Green, has a post on the OSHA Law Update blog that will be of interest to many of our readers in the hospitality industry: “OSHA’s New Electronic Recordkeeping Rule Creates a Number of New Pitfalls for Employers.”

Following is an excerpt:

On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness information to the agency electronically.  The amendments also include provisions designed to prevent employers from retaliating against employees for reporting injuries and illnesses at work.  The information employers provide will be “scrubbed” of personally identifiable information and published on OSHA’s website in a searchable format. …

OSHA plans to rely upon computer software to remove personally identifiable information from these records.  The software will supposedly remove all of the fields that contain identifiers such as the employee’s name, address, and work title, and to search the narrative field in the form to ensure that no personally identifiable information is contained in it.  OSHA’s reliance on a computer system to detect every piece of identifiable information in a narrative is terribly risky and increases the potential for a data breach.

Read the full post here.

Our colleague Valerie Butera recently authored Epstein Becker Green’s March issue of Take 5 in which she outlines actionable steps that employers can take to improve safety in the workplace and avoid costly OSHA citations.

Following is an excerpt:Take 5 banner

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for employers to mitigate against every conceivable hazard in the workplace, there are five critical steps that every employer should take to improve safety in the workplace—and avoid costly OSHA citations. Read on for the steps:

  1. Conduct an Internal Safety and Health Audit Under Attorney-Client Privilege
  2. Create a Strong Safety Culture
  3. Ensure That Safety and Health Documentation Is Current and Well Communicated
  4. Train Employees in Safety and Health, Regularly and Comprehensively
  5. Protect Contractors and Temporary Workers, Too

Click here to read the full Take 5 online.

On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.” As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

To access the full blog post, please click here.

Our colleague Eric Conn, Chair of Epstein Becker Green’s OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA’s Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the "Employer Mandate" kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014 and has already launched a Temporary Worker Initiative.

This webinar is the first of a five-part series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.

Read more about the webinar and the series, or click here to register.

February 1st is an important annual OSHA Injury and Illness Recordkeeping deadline. Specifically, by February 1st every year, certain employers are required by OSHA’s Recordkeeping regulations to:
 1.Review their OSHA 300 Log;
 2.Verify that the entries are complete and accurate;
 3.Correct any deficiencies on the 300 Log;
 4.Use the injury data from the 300 Log to develop an 300A Annual Summary Form; and
 5.Certify the accuracy of the 300 Log and the 300A Summary Form
For a more detailed explanation of the requirements and which companies are exempt, we encourage you to read the recent OSHA Law Update published by Amanda R. Strainis-Walker and Eric J. Conn
 

The OSHA Law Update blog has an update on the government shutdown: “OSHA Shutdown – Government Shutdown Strips OSHA to a Skeleton Crew,” by Casey Cosentino and Eric Conn of Epstein Becker Green.

Following is an excerpt:

The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations. As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.

Read the full post here.