On August 29, 2016, the EEOC issued new Enforcement Guidance on Retaliation which replaces its 1998 Compliance Manual section on retaliation. The Guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.  According to the EEOC, retaliation is asserted in nearly 45 percent of all charges filed with the EEOC and is the most frequently alleged basis of discrimination.  EEOC Chair Jenny R. Yang said that “[t]he examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.” Beth-West-15_web

The Guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).  Topics explained in the new Guidance include:

  • The scope of employee activity protected by the law.
  • Legal analysis to be used to determine if evidence supports a claim of retaliation.
  • Remedies available for retaliation.
  • Rules against interference with the exercise of rights under the ADA.
  • Detailed examples of employer actions that may constitute retaliation.

The EEOC has also issued two short user-friendly resource documents to accompany the new Guidance: a question-and-answer publication that summarizes the Guidance, and a short Small Business Fact Sheet that condenses the major points in the Guidance in non-legal language.  To obtain copies of the Guidance or the Q&A or Fact Sheet for Small Businesses, go to https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.

OSHA’s Fact Sheet providing guidance for protecting workers from occupational exposure to the Zika virus explains that the Zika virus is primarily spread through the bites of infected mosquitoes and that mosquitoes can become infected when they bite infected persons and then spread the Zika virus to other persons they subsequently bite. According to OSHA, current science-based evidence suggests that approximately one out of five infected people develops symptoms of the Zika virus, usually beginning 2-7 days after the bite of an infected mosquito.  The most common symptoms of the Zika virus infection are fever, rash, joint pain, and red or pink eyes. Other symptoms can include myalgia (muscle pain) and headache.  More serous neurological and autoimmune complications are possible but have not been seen in the U.S.

There is no vaccine to prevent the Zika virus and there is no specific treatment for individuals who become infected. Although the Zika virus is generally spread by the bites of infected mosquitoes, exposure to an infected person’s blood or other body fluids (e.g. through sexual transmission) may also result in transmission. Employers should train workers about their risks of exposure to the Zika virus through various modes of transmission.Beth-West-15_web

OSHA points out that employees who work outside may be at the greatest risk of exposure to the Zika virus. Some workers, including those working with insecticides to control mosquitoes and healthcare workers who may be exposed to contaminated blood or other potentially infectious materials from individuals infected with the Zika virus, may require additional protections (e.g., certain types of personal protective equipment, PPE).

OSHA provides the following recommendations to employers who have employees that work outside:

  • Check the CDC Zika website to find Zika-affected areas.
  • Inform employees about their risks of exposure to Zika virus through mosquito bites and train them how to protect themselves.
  • Provide insect repellents and encourage their use.
  • Provide employees with, and encourage them to wear, clothing that covers their hands, arms, legs, and other exposed skin. Consider providing employees with hats with mosquito netting to protect the face and neck.
  • In warm weather, encourage employees to wear lightweight, loose-fitting clothing. This type of clothing protects employees against the sun’s harmful rays and provides a barrier to mosquitoes.
  • Always provide employees with adequate water, rest and shade, and monitor them for signs and symptoms of heat illness.
  • Get rid of sources of standing water (e.g., tires, buckets, cans, bottles, barrels) whenever

possible to reduce or eliminate mosquito breeding areas. Train employees about the importance of eliminating areas where mosquitos can breed at the worksite.

  • If requested by an employee, consider reassigning anyone who indicates she is or may become pregnant, or who is male and has a sexual partner who is or may become pregnant, to indoor tasks to reduce their risk of mosquito bites.

OSHA explains that its guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace. To obtain a copy of the Fact Sheet, go to https://www.osha.gov/Publications/OSHA3855.pdf.

 

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued two final rules confirming that employers can offer limited incentives (in the form of a reward or avoidance of a penalty) to encourage employees and their spouses to participate in workplace wellness programs.  Under these new rules, employers who offer wellness programs will be allowed to provide such limited incentives to employees or their spouses to induce them to provide information about their current or past health status.  The new rules modify regulations that pertain to Genetic Information Nondiscrimination Act (“GINA”) while creating new regulations that pertain to the Americans with Disabilities Act (“ADA”).

To read the rest of the blog, click here: http://blog.hrusa.com/blog/eeocs-final-rules-employer-wellness-programs/

Summary of Program
The Labor and Employment Group at Weintraub Tobin is pleased to offer this informative seminar that will discuss recent cases to help business owners, human resource professionals, and managers avoid liability and effectively hire employees as well as carry out disciplines and terminations. This seminar will cover:

• Lawful and effective job postings and interview questions.L&E2015
• Tips for an effective and meaningful discipline process.
• Effective policies, training and documentation to reduce liability.
• “Progressive Discipline” – Beware!
• Conduct that may constitute “retaliation” and the laws that apply.
• Properly responding to “whistleblowers”.
• Voluntary quits versus “constructive” termination.
• What constitutes “wrongful termination” and what that means for at-will employment.

Date:  September 15, 2016
Time:  9:30 a.m. – 11:30 a.m.

Seminar
9:00 am – 9:30 am – Registration & Breakfast
9:30 am – 11:30am – Seminar

Webinar: This seminar is also available via webinar. Please indicate in your RSVP if you will be attending via webinar.

Location
Weintraub Tobin Office
400 Capitol Mall, 11th Floor | Sacramento, CA 95814

Parking Validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street. Please bring your parking ticket with you to the 11th floor.

Approved for two (2) hours MCLE. This program will be submitted to the HR Certification Institute for review. Certificates will be provided upon verification of attendance for the entirety of the webcast.

There is cost for this seminar.

*This seminar will be limited to 75 in-person attendees.

In July 2016, the federal Department of Labor (DOL) updated two posters that employers are required to post in the workplace.

  1. The “Employee Rights under the Fair Labor Standards Act” poster; andBeth-West-15_web
  1. The “Employee Rights – Employee Polygraph Protection Act” poster.

According to the DOL, every employer subject to the federal Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA) must post and keep posted on its premises the amended posters after August 1, 2016.  The posters must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment.

Copies of the posters can be obtained on the DOL website at: https://www.dol.gov/whd/resources/posters.htm.