Will the Revised EEO-1 Form Be Stopped?

Last week, Senators Lamar Alexander (R-Tennessee) and Pat Roberts (R-Kansas) urged President Trump to rescind the new requirements of the revised EEO-1 form. I originally wrote about the proposed EEO-1 form last fall – you can find my blog post here. The revised form requires, for the first time, that covered employers submit pay data to the government. The purpose is to assist the EEOC in identifying and eradicating pay discrimination based on gender, race, and other protected categories.

According to the Senators, “[t]hese revisions will place significant paperwork, reporting burdens, and new costs on American businesses, and will result in few jobs created and higher prices for American consumers.” The EEOC projected it would take the approximately 61,000 covered employers a total of about 1.9 million hours and cost $53.5 million to complete the new forms.[1] However, the United States Chamber of Commerce claims the figures are closer to 8 million hours and $400 million to comply.[2]

The EEOC had initially set a September 2017 deadline for companies to file the new report. After much pushback from the business community, the first reports under the new rules are due by March 31, 2018. This gives elected officials plenty of time to try and convince the Trump Administration to reverse course. The reversal must come from the Office of Management and Budget, which is led by former South Carolina Representative Mick Mulvaney.

This update serves as a reminder to employers to be proactive regarding pay discrepancies. Employers should consider conducting an internal audit to determine whether there is a legitimate business reason for differences in pay among similar categories of employees.

[1] https://www.bna.com/scrap-eeoc-pay-n57982086684/

[2] Id.

Register for HSB’s Spring HR Law Seminars

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming HR Law Updates.

HR professionals are invited to join us for a program that will cover the basics of HR law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit. HSB is an approved SHRM provider and HRCI credit will be available.

Our attorneys will discuss hot topics HR Managers are facing today: recent developments in immigration law, HR compliance, LGBT and the Fourth Circuit, Non-compete and non-disclosure agreements in SC, and more! We’ll also have an open Q&A session to answer your questions.

Join us for our spring seminars:

May 23 – The Bleckley Inn, Anderson
8:00 am – 12:00 pm
Click here for details and to register.

May 24 – Greenville Marriott
8:00 am – 12:00 pm
Click here for details and to register.

We will host additional seminars this fall – stay tuned!

Please contact Keely Yates for additional information.

Now What?: ADA’s Website Accessibility Guidelines May Take Longer than Anticipated

Recently, the SC Employers’ Blog alerted you to a rising trend where serial claimants send demand letters to various private companies alleging the company’s website discriminates against individuals who are blind or visually impaired. That blog discussed a proposed Department of Justice (“DOJ”) rule, which would clearly define accessibility guidelines for public accommodations under Title III, and it was thought that the DOJ would implement those rules in 2018.

All recent signs are now suggesting otherwise. A recent Executive Order seems to put the DOJ rulemaking on website accessibility on hold for the foreseeable future. On January 20, 2017, all administrative agencies were temporarily “frozen” via a White House Memorandum, in order for the new agency heads appointed by President Trump to review all policies and proposed rules, and determine what agency initiatives would be continued or disbanded. On January 30, the President issued Executive Order 13771 titled “Reducing Regulation and Controlling Regulatory Costs.” This Order was issued to manage “costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.”

Executive Order 13771 sets forth three guidelines for federal agencies moving forward:

  1. For every new regulation issued, at least two prior regulations must be identified for elimination. In addition, the cost of planned regulations should be prudently managed and controlled through a budgeting process, according to the order.
  2. Second, the order requires that the “total incremental cost of all new regulations, including repealed regulations, should be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (“Director”).”
  3. Finally, any new incremental cost associated with a new regulation shall be offset by the elimination of existing costs associated with at least two prior regulations. This imposes a cap on the cost for new regulations in 2017 at $0.

For 2018 and beyond, each agency head shall identify the incremental cost for each regulation, the offsetting regulations, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation. Under this order, the Director is required to identify a total amount of incremental costs that will be allowed for each agency when issuing new regulations and repealing regulations for the next fiscal year during the Presidential budget process.

This then begs the question, “What does this mean for DOJ’s proposed rulemaking regarding website compliance under the ADA?” The DOJ clearly feels that websites are subject to the ADA, but given the constraints imposed on future rulemaking by Executive Order 13771, the DOJ will have to carefully select what regulations it chooses to roll out in the future. This means the general accessibility mandate required by the ADA is likely to be the law for the foreseeable future. As explained in our previous blog post, the general accessibility mandate, or the “auxiliary aid requirement,” requires that a public accommodation take necessary steps to ensure no individual with a disability is excluded, denied services, segregated or otherwise treated differently, unless the public accommodation can demonstrate that taking those steps would fundamentally change the nature of the goods or be unduly burdensome. What type of auxiliary aid will suffice is still to be determined through case law or any forthcoming rulemaking, whenever that may be.

On March 20, the Central District of California recently dismissed a case due in part to the DOJ’s failure to specify what an accessible website is under the ADA. The Court in Robles v. Dominos Pizza, LLC, No. CV 16-06599 SJO (SPx) (C.D. Cal. Mar. 20, 2017) granted Dominos motion to dismiss on the grounds that Plaintiff’s attempted imposition of the WCAG 2.0 Standards “flies in the face of due process.” The court referenced the DOJ’s prolonged rulemaking process for the ADA’s website accessibility standards and noted the questions the DOJ raised more than seven years ago are still unanswered. To require Dominos to comply with the WCAG 2.0 standards “without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic” violates Dominos’ due process rights. The court dismissed the plaintiff’s causes of action without prejudice, pursuant to the primary jurisdiction doctrine. Generally speaking, a court invoking the primary jurisdiction doctrine is deferring to the expertise and uniformity of the relevant agency, rather than rendering a decision on the matter that would have the effect of creating law.

The Robles court briefly discussed auxiliary aids, but provided no guidance on whether what Dominos was using sufficed. Dominos included on their website (after the suit was filed) “accessibility banners that direct[s] users who access the website using a screen reader with the statement: ‘If you are using a screen reader and are having problems using this website, please call 800-254-4031 for assistance.’” This number was staffed by a live representative who provided blind or visually impaired individuals with assistance. The court did not rule on whether this was an appropriate auxiliary aid, but did note, “Plaintiff has failed to articulate why either Defendant’s provision of a telephone hotline for the visually impaired or it’s compliance with a technical standard other than the WCAG 2.0 does not fall within the range of permissible options afforded under the ADA.” Other agencies and companies have employed live phone representatives in a similar manner. While this seems to be ensuring “effective communication” between the public accommodation and the disabled individual, we have yet to find a case where a court has explicitly approved this under the law.

As the amount of website accessibility cases increase, we can only expect increased pressure on the DOJ to issue clear and defined rules on website accessibility.

Today’s blog post is authored by Drew Rawl, a commercial litigator based in our Greenville office.

Something good for employers in the American Health Care Act

The Affordable Care Act’s current proposed replacement does not include an employer mandate and abolishing the employer mandate is a good thing proposed in the American Health Care Act and the Patient Freedom Act before it.  Employers are not in the business of health insurance and, to some, having to offer health insurance coverage hinders their ability to continue business operations, thereby negatively impacting the ability to offer employment to the detriment of the economy.  Before the ACA was passed in March 2010, employers were not required to offer health insurance coverage as an employment benefit. The U.S. Supreme Court has held, “employers had large leeway to design disability and other welfare plans as they see fit.”[1]  Employers voluntarily began offering health insurance coverage as a benefit to their employees after the Stabilization Act of 1942 was enacted to cap wages and salaries.[2]  Employers began offering health insurance when employers were prohibited by the 1942 Act from increasing wages in order to attract prospective employees.

Fast forward to the current day and employers are now the primary provider of health insurance coverage to the American population.  “Employment-based insurance covered the most people (55.7 percent of the population), followed by Medicaid (19.6 percent), Medicare (16.3 percent), direct-purchase (16.3 percent) and military health care (4.7 percent), according to the most current 2016 Census gathering 2015 information.”[3]  However, the cost of healthcare for the employer has increased by 1,106% since 1977.[4]

Many supporters of repealing the ACA believe that it will help reduce their health insurance costs, forgetting that those were well on the rise long before the ACA was passed in 2010.  The Organization for Economic Co-operation and Development (OECD) gathers healthcare costs data from 35 countries, including the United States.  The OECD’s data established that the United States was spending “two and a half times more than the OECD average health expenditure per person” by 2011, long before the more costly requirements of the ACA were implemented and well before the ACA could be blamed for increased healthcare costs.[5]

At the time the OECD data was gathered, there were no mandates enacted in the United States for either employers or individuals to purchase health insurance.  Thus, presumably any Act which returns America to the same system in place before the ACA will not remedy the rising cost of healthcare and healthcare coverage since those costs were well on the rise before the ACA was promulgated. Currently, employers bear the largest brunt of providing healthcare coverage to the American citizens.  This is not a burden that was originally intended for employers.  The impact is most strongly felt by small businesses which are the majority of businesses in the U.S.  48.4% of American private sector employers employ less than 500 or less employees, 34.3% employ less than 100 workers and 17.6% employ less than 20 workers.[6] The individual mandate, first proposed by conservatives and the Heritage Foundation in 1984, is a more viable alternative for healthcare insurance in that the majority of Americans bear the cost of healthcare insurance, thereby reducing the cost overall.[7]

Although many employers will continue to offer healthcare coverage to their employees, many other businesses may choose more appropriate solutions tailored for their businesses, such as internal health clinics, stipends towards health insurance payments, or other innovative ideas tailored to compliment the specific business of the employer. Thus, employers and their advocates should all be supporting the repeal of the employer mandate.

Doc1

[1] Black & Decker v. Nord, 538 U.S. 822 (2003).

[2] http://www.legisworks.org/congress/77/publaw-729.pdf

[3] https://www.census.gov/newsroom/press-releases/2016/cb16-158.html

[4] See Chart appendixed to blog and courtesy of Rick Gantt, South Carolina Area President, Benefits and HR Consulting, Arthur J. Gallagher & Co.

[5] https://www.oecd.org/unitedstates/49084355.pdf

[6] http://sbecouncil.org/about-us/facts-and-data/

[7] http://www.heritage.org/research/lecture/assuring-affordable-health-care-for-all-americans

Round Three – Hawaii District Court Issues TRO against Travel Ban

On March 15, 2017, the United States District Court for the District of Hawaii issued an Order granting a nationwide Temporary Restraining Order (“TRO”) against President Trump’s Executive Order No. 13,780 which was to be effective March 16, 2017 (the “Executive Order”). This Executive Order replaces the January 27, 2017 Executive Order. Both Executive Orders restrict the entry of foreign nationals from certain countries and refugees on a temporary basis.

The State of Hawaii and Ismail Elshikh, Ph.D. sought a nationwide TRO prohibiting the enforcement of Sections 2 (six country ban) and 6 (suspension of the U.S. Refugee Assistance Program) of the Executive Order. The Court found that the Plaintiffs met their burden by demonstrating a strong likelihood of success on the merits and granted the TRO. Specifically, the Court addressed (i) the Plaintiffs’ Establishment Clause claim, (ii) whether irreparable injury is likely to occur, and (iii) whether the balance of equities favors the Plaintiffs.

The Court addressed the three issues above in turn. First, on the issue of the Establishment Clause, the Court found that the six-country ban showed religious discrimination in violation of the Establishment Clause of the First Amendment. The government sought to demonstrate a lack of religious discrimination by stating that the six countries comprise of only 9% of the world’s Muslim population. However, the Court was not convinced – “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.” State of Hawaii and Ismail Elshikh v. Donald J. Trump, CV. No. 17-00050 DKW-KSC (D. Hawaii March 15, 2017). Second, since the Plaintiffs demonstrated a likelihood of success on the Establishment Clause claim, the Court found that irreparable harm may be presumed. Lastly, the Court considered the balance of equities and the public interest. In analyzing this last issue, the Court weighed the national security concerns against the constitutional injuries and found that the “balance of equities and public interests justify granting the [] TRO.” Id.

As of now, individuals from the six countries listed in the Executive Order are subject to the same immigration rules as individuals from any other nation. The U.S. Refugee Assistance Program will remain unaffected. However, other unchallenged portions of the Executive Order such as the suspension of the Visa Interview Waiver Program will take effect as scheduled.

Round Two – Key Points to Know about the New Immigration-Related Executive Order

On March 6, 2017, President Trump signed a new immigration-related Executive Order. This anticipated Executive Order comes on the heels of his controversial January 27, 2017 Executive Order which temporarily suspended the refugee program and temporarily banned individuals from seven countries from entering the United States. The earlier Executive Order was halted in part by a Ninth Circuit Court Order, and met with widespread protests nationwide. The March 6th Executive Order repeals the January 27th Order in its entirety, and will take effect starting March 16, 2017.

The March 6th, Executive Order opened with an approximately two-page clarification of the earlier Executive Order. In response to popular outcry against the January Order and judicial disapproval of alleged religious discrimination, this Executive Order addressed the idea of a “Muslim Ban,” explaining that the earlier Order “did not provide for a basis for discrimination for or against members of any particular religion.” It further set forth the Administration’s policy objectives surrounding national security and cited a 2016 Department of State report justifying a temporary ban for individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen on the basis of national security.

With this backdrop, the March 6th Executive Order’s key points are as follows:

  1. 90-day ban on individuals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraq was left off the list this time. The Administration reasoned that a ban on Iraqis is unnecessary given the “close cooperative relationship between the United States and the . . . Iraqi government . . . .” While Iraq is not subject to the 90-day ban, Section 4 of the Order calls for a “rigorous evaluation” of applications by Iraqi nationals. The remaining countries present an “unacceptably high” threat.
  2. The Executive Order only applies to foreign nationals of the designated countries who:
    (a) are outside the United States on March 16, 2017;
    (b) did not have a valid visa at 5:00 P.M., eastern standard time on January 27, 2017; and
    (c) do not have a valid visa on March 16, 2017.
  3. There are several notable carve-outs narrowing the Executive Order’s scope. The Executive Order does not apply to: Green Card holders, dual nationals when traveling on a passport issued by a non-designated country, foreign nationals who have been granted asylum and certain others who hold select visas.
  4. Immigration officials are permitted to make case-by-case determinations to issue visas or permit the entry of foreign nationals for whom entry is otherwise suspended. The foreign national must demonstrate “undue hardship” and that the foreign national’s presence would not pose a threat to national security. The Order outlines instances in which such a waiver may be appropriate, including when the foreign national:
    (a) has been previously admitted for work, study or other long-term activity, and seeks to re-enter the United States to resume this activity;
    (b) seeks to enter for significant business or professional obligations;
    (c) seeks to visit a close family member who is lawfully in the United States; or
    (d) seeks urgent medical care or has a special circumstance.
  5. The United States Refugee Assistance Program (USRAP) is temporarily suspended for 120 days, and the 2017 refugee numerical cap is set at 50,000 refugees. However, the suspension does not apply to those who have been formally scheduled for transit by the Department of State.
  6. The Visa Interview Waiver Program is suspended, meaning that in most instances, a non-immigrant visa applicant will have to undergo an in-person interview.
  7. Several other provisions from the January Executive Order remain in place including the visa reciprocity review and the data collection directives in Section 10 and 11 of the new Order, respectively.

The Executive Order is clear that any immigrant or non-immigrant visa issued before March 16, 2017 shall not be revoked pursuant to the new Order. While this Executive Order is far more specific than the January Order, the implementation by the various agencies will be worth watching to understand its practical impact. Travelers are well-advised to ensure that all immigration-related documentation is in order, account for delays when traveling to and from one of the six listed countries, and maintain a contingency plan in case of unforeseen events in transit.

Haynsworth Sinkler Boyd will continue to monitor further developments in this dynamic immigration climate.

Will South Carolina Ban the Box?

In prior posts, we have noted that HR professionals should acknowledge the tension between making hiring decisions based on an applicant’s criminal history and avoiding Title VII liability, if refusing to hire certain individuals based on these prohibitions results in disparate treatment of or disparate impact on protected classes of individuals under Title VII (e.g., race, national origin, gender). In recent years, the “Ban the Box” Movement has gained traction in an effort to place restrictions on the types of criminal conduct that employers may consider and how they may consider it, with the stated goal of affording persons with histories of criminal conduct opportunities for gainful employment. At the federal level, the EEOC complemented these efforts when it issued its 2012 Enforcement Guidance entitled, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” In this Guidance, the EEOC emphasized that criminal background check practices may have a disparate impact on, for example, African American and Hispanic men who have a statistically higher arrest and incarceration rate than other classes of individuals. Accordingly, the EEOC’s Guidance outlined what it believes to be an employer’s best practices for complying with Title VII when handling an applicant’s criminal history. In 2015, the Obama Administration adopted a “ban the box” policy in federal employment by modifying certain rules to delay inquiries into an applicant’s criminal history until later in the hiring process.

At the state level, according to the National Employment Law Project, 25 states have adopted policies that prohibit inquiring into or considering an applicant’s criminal history until after consideration of the applicant’s qualification, largely in the public employment sector. In nine of those states, private employers also are prohibited from requesting criminal history information until later in the hiring process. South Carolina currently is not one of those states.  However, if any one of the four bills (H. 3059, H. 3062, S. 191, S. 192) currently pending before the South Carolina General Assembly is passed, “ban the box” could be a statutory, statewide policy in South Carolina.

Collectively, all 4 bills propose to codify in statute the following general concepts:

  • “Conviction of crime”   The types of criminal history that an employer is permitted to consider is specifically defined. The House bills seek to limit criminal convictions to felonies, “gross misdemeanors” and misdemeanors involving possible incarceration. The Senate bills involve convictions, guilty pleas, nolo contendere pleas and bond forfeitures for crimes involving possible incarceration. All of the bills specifically exclude consideration of any arrests that did not result in a conviction, expunged convictions and/or charges that were not pressed or dismissed.
  • Ban the Box         No public or private employer may inquire, consider or require disclosure of an applicant’s criminal record until after either (1) the applicant is selected for an interview, or (2) if interviews are not conducted, a conditional offer of employment is made to the applicant. Employers exempt from this prohibition include the S.C. Department of Corrections, financial institutions (H. 3062 only) and employers with a statutory duty to conduct a criminal background check or otherwise inquire into an applicant’s criminal history.
  • Denial of Employment or Licensure       No public employer or professional licensing authority[i] may deny employment or licensure on the basis of the applicant’s criminal conviction unless the crime “directly relates” to the position or occupational license sought. Factors that an employer must consider to determine whether a crime “directly relates” to the position or license sought are: (1) the nature and seriousness of the crime; (2) the relationship between the crime and the purposes of regulating the position of public employment or occupation for which licensure is sought; (3) the relationship between the crime and the ability, capacity and fitness required to perform the duties of the position or occupation; and (4) the amount of time since the crime was committed.
  • Opportunity to Demonstrate Rehabilitation      For public employment, even if a crime is “directly related” to the position, the applicant has an opportunity to present “competent evidence of his sufficient rehabilitation and present fitness to perform the duties of employment.” The bills enumerate several types of evidence, including U.S. Department of Defense Form 214 indicating an honorable discharge or separation under honorable conditions following a criminal conviction, and a statement from a correctional institution at least one year after release showing compliance with all terms and conditions of probation or parole. The public employer must also consider other individualized assessment factors, including all circumstances surrounding the crime and conviction and the applicant’s age at the time the crime was committed.
  • Grievance Rights and Enforcement       Under the House bills, if an applicant for public employment or occupational licensure ultimately is denied based on his or her criminal history, the applicant may pursue a grievance process under the Administrative Procedures Act. In addition, violations of the “ban the box” provisions by private employers will be enforced by the South Carolina Human Affairs Commission through the imposition of monetary penalties.
  • Tax Incentives     Under S. 191, an employer is eligible for a state income tax credit for hiring a “qualified ex-felon” for certain threshold amounts of hours. A “qualified ex-felon” is an individual who was convicted of any felony codified under state law and if hired less than 2 years after release from prison, has not been convicted of another criminal offense. At this time, it is difficult to determine whether or when any of the bills will move forward during the Legislative Session, either in their current versions or modified. Although the bills are an attempt to further the goal of gainful employment of individuals with criminal histories, the bills as written appear to be an overreach into the discretion that an employer – whether public or private – exercises in the hiring process. The codification of an employer’s hiring processes and procedures, and the factors that the employer can – and importantly, cannot – take into consideration appear to impose a one-size-fits-all approach to hiring. What’s more, if the proposed requirements are passed primarily in the context of public employment, there is a risk that those requirements will be extended to private employers in the future.

[i]              Only the House bills address occupational licensing authorities.

What Can Employers Glean from the DOE’s and the DOJ’s Position on the Provision of Transgender Bathrooms under Title IX?

restroom sign

On February 22, 2017, the Department of Justice and the Department of Education issued a “Dear Colleague” letter withdrawing the statements of policy and guidance issued by the Department of Education on January 7, 2015 and the Departments of Justice and Education on May 13, 2016. In the February 22, 2017 letter, the Office of Civil Rights division of both Departments stated that the previous guidance to schools regarding access to restrooms for transgender students was being withdrawn because of the “primary role of states and local school districts in establishing educational policy.”  Further clarification by the White House Press Secretary, Sean Spicer, indicates that President Trump believes the issue of transgender access to restrooms under Title IX is a states’ rights issue and not a federal government issue.  Secretary of Education, Betsy Devos, issued a statement on February 22, 2017, reiterating that the Department of Education would continue to enforce non-discrimination provisions of Title IX.

Approximately six months earlier, in a case of first impression, the Fourth Circuit Court of Appeals held a transgender student can maintain a claim under Title IX if a school refuses to give him access to the bathroom that corresponds to his gender identity.   G.G. Ex. Rel. Grimm v. Gloucester Cty. School Board, No. 15-2056 (4th Cir., April 19, 2016). In so holding, the Fourth Circuit addressed the meaning of the word “sex,” stating a “hard and fast binary division on the basis of reproductive organs is not universally descriptive.”  The Fourth Circuit Court of Appeals is the first federal appellate court to hold transgender students have a cause of action under Title IX if a school denies restroom access on the basis of gender identity vs. biological identity.  The Fourth Circuit opinion deferred to the May 13, 2016 letter from the Departments in rendering its opinion and it is an unknown as to whether the Court would have reached the same conclusion in light of the Departments’ 2017 retraction of that guidance.[1]

Why does this matter to employers, at least those under the Fourth Circuit’s jurisdiction, which includes South Carolina, Virginia, West Virginia, North Carolina and Maryland? The Fourth Circuit relied on definitions of “sex” under Title VII to reach its conclusion regarding the definition of “sex” not being based on biological organs. Title VII is the federal statute applicable to employers and employees, and it prohibits employers from discriminating against employees on the basis of their gender.  The opinion offers insight into how the Fourth Circuit might view a decision when faced with the issue of how an employer treats transgender employees.  And while this Fourth Circuit opinion is under review by the United States Supreme Court, a reversal would only pertain to the Fourth Circuit’s specific holding in the case, and would not impact the message employers can take from the opinion’s dicta regarding the definition of “sex.”

Thus, employers should continue to adopt, implement and follow gender-neutral best practices. We are often asked what this means regarding restroom access.  OSHA Sanitation Standard 1910.141(c)(1)(ii) requires that employers offer toilet facilities for each sex and permit them reasonable access. OSHA issued guidance regarding the issue of transgender restroom access, recommending, among other things, single occupancy, gender neutral or multiple occupancy lockable stalls.  OSHA’s core principle in its guidance was expressed: “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” Many employers don’t have the ability to redo their facilities to accommodate the OSHA recommendation. However, actions employers can take include adopting gender neutral policies and practices, and requiring a workplace environment that is accepting and not hostile to any employee on the basis of gender identity. In today’s highly charged political climate, this can prove difficult.

 

[1] The Fourth Circuit gave the May 13, 2016 letter “controlling” deference under the doctrine of Auer v. Robbins, 519 U.S. 452 (1997).

Is Post-Accident Drug Testing Still Legal?

Last year, the Occupational Safety and Health Administration (“OSHA”) published a final rule that (1) made explicit the requirement that employers have a reasonable procedure for their employees to report work-related injuries and illnesses, and (2) made clear that employers cannot retaliate against employees for reporting work-related injuries. A link to the U.S. Department of Labor’s Memorandum on the rule can be found here. The rule’s impact on post-accident drug testing has caused the most consternation among human resource professionals.

The first question is whether or not your current drug-testing policy contains a “reasonable procedure” for employees to report work-related injuries and illnesses. The rule states that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” (29 C.F.R. 1904.35). OSHA has taken the following position as whether automatic post-accident testing would deter or discourage employees from reporting:

To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

Thus, per OSHA, employers should not automatically conduct post-accident drug testing, regardless of the circumstances. A post-accident drug test without an “objectively reasonable basis for testing” would be a violation of this rule.

Of course, there are a number of reasons why always conducting a drug test after an accident is a good idea notwithstanding OSHA’s rule. For example, a company could be subjected to liability if it fails to drug test someone after an accident and that same person is involved in another accident that injuries a third party. If that employee was using drugs during the accident, the injured party could presumably sue the company for negligence because it failed to take action against someone they should have known was under the influence. Also, many commercial general liability insurance policies require automatic post-accident testing.

Thus, employers should review their current policy to determine whether your company requires post-accident drug testing in all circumstances. If so, engage in a cost-benefit analysis.

  • Is it really necessary or worthwhile to drug test after every accident?
  • Does it serve as a deterrent effect to your employees?
  • Does the potential liability of third-party claims outweigh the risk of an OSHA violation?
  • Should employers supplant automatic post-accident testing with the “reasonable suspicion” test in their policies?

The answers to all of these questions will depend in large part on your business and workforce.

President Trump’s First Official Action regarding the Affordable Care Act

President Trump issued the “Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal” on January 20, 2017, one of his very first actions upon taking the oath of office.  The Executive Order directs the Department of Health and Human Services (HHS) and “heads of all other executive departments and agencies with authorities and responsibilities under the Act” to “exercise all authority and discretion available to them to waive, defer, grant exemptions from or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any state or a cost, fee, tax, penalty or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products or medications.”[1]  The Executive Order acknowledges that the agencies can only act as he has instructed “to the maximum extent permitted by law.” President Trump reiterated in the Executive Order that “[i]t is the policy of my Administration to seek the prompt repeal of the [ACA].”

In short, the Executive Order mandates that the fines and penalties associated with the ACA not be enforced as long as their enforceability is not mandated by law. The admonishment applies to any of the agencies charged with enforcing the ACA and specifically mentions HHS but the Internal Revenue Service (IRS) and Department of Labor (DOL) are two other agencies with significant responsibilities under the ACA.  The issue becomes determining where the ACA has given the agencies latitude in deciding when fines or penalties for compliance under the ACA can be waived or what other practical solutions the agencies have to honor the Order, such as delaying all attempts to pursue fines and penalties.  The Executive Order also states that the agencies may promulgate new rules and issue Notice of Proposed Rule Making as required by the Administrative Procedures Act, possibly as encouragement to do so as most ACA compliance requirements are contained in Regulations as opposed to the ACA itself. Further, those agencies to whom the Executive Order is directed are the ones who have recently worked so intently to educate, promulgate, pass and enforce the regulations amplifying provisions of the ACA since it as passed in March 2010.

While the news of the Executive Order is no surprise, it is difficult to know how to react to it. The difficulty is enhanced by President Trump’s contradictory statements about retaining certain aspects of the ACA such as his comments after being elected in November  2016, wherein President Trump said that he would like to retain the ACA requirements that health insurance plans cover Americans with pre-existing conditions or young adults on their parents’ plans until age 26.  The safest practice for employers and individuals alike is to continue to abide by the ACA until these issues are resolved by Congress.

[1] https://www.whitehouse.gov/the-press-office/2017/01/2/executive-order-minimizing-economic-burden-patient-protection-and

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