James S. Frank, a Member in the Health Care and Life Sciences and Labor and Employment practices, and Serra J. Schlanger, an Associate in the Health Care and Life Sciences practice, co-authored an article for the American Health Lawyers Association (AHLA) entitled “Hospitals’ Heavy Lifting:  Understanding OSHA’s New Hospital Worker and Patient Safety Guidance.”

The article, published in AHLA’s Spring 2014 Labor & Employment publication, summarizes OSHA’s new web-based “Worker Safety in Hospitals” guidance, explains how the guidance relates to OSHA’s existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as well as an effective Safety and Health Management System.

The article goes on to forecast what OSHA’s Hospital Safety guidance will mean in the future for employers in the healthcare industry, including:

  1. More Whistleblower Complaints;
  2. Heavier enforcement by OSHA;
  3. Increased enforcement by the Joint Commission; and
  4. Greater interest in safety and health related legislation.

 

Finally, the article provides recommendations for what hospital and health system employers can do now to prepare for these developments, including:

  1. Reviewing and digesting the new OSHA hospital patient and employee safety resource;
  2. Work with employees and/or contractors to improve Safe Patient Handling Programs and/or a Safety and Health Management Systems; and
  3. Prepare for more safety-related whistleblower complaints by setting up effective processes to quickly investigate and address complaints and employee injuries and illnesses.

 

Below are some excerpts from the article:

On January 15, 2014 the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new online resource to address both worker and patient safety in hospitals.

According to OSHA, a hospital is one of the most dangerous places to work, as employees can face numerous serious hazards from lifting and moving patients, to exposure to chemical hazards and infectious diseases, to potential slips, trips, falls, and potential violence by patients—all in a dynamic and ever-changing environment. . . . Continue Reading Hospitals’ Heavy Lifting: Understanding OSHA’s New Hospital Worker and Patient Safety Guidance

The national OSHA Practice Group at Epstein Becker Green co-authored an article in BioFuels Journal entitled “Railcar Fall Protection: What OSHA Requires from Ethanol Plant Operators.”  Although the article principally addresses OSHA’s enforcement landscape related to work on top of railcars at ethanol plants, the analysis carries over to work on top of any rolling stock (e.g., tanker trucks, railcars, rigs, etc.) in any industry.

Here is an excerpt from the article:

Addressing fall hazards is always among the OSHA’s top enforcement priorities.  Indeed, OSHA’s fall protection standards continue to rank among the most frequently cited year after year.  The use of fall protection equipment for work on top of rolling stock, however, is one of the most confusing and inconsistently enforced OSHA requirements, particularly for work on top of railcars at grain elevators facilities and ethanol plants.

There are numerous work activities that require employees to stand on and walk between the tops of railcars . . .from stowage inspections and prepping cars, to helping guide a loadout spout into a railcar, or allowing state or federal grain inspectors to access railcars for sampling and grading.  With potentially miles of track where these work activities may need to be performed on top of railcars, there often is no feasible method for employees to tie off a harness and lanyard over the tracks.

The article goes on to explain the current state of the law in this area, including a detailed analysis of OSHA’s 1996 Miles Memo (a formal interpretation about rolling stock fall protection requirements), a recent OSH Review Commission decision interpreting the Miles Memo, and a series of recommended practices for employers.

Here is a link to the article.

 

By Alka N. Ramchandani and Michael D. Thompson

In recent years, Cal-OSHA has taken an aggressive stance against exposing employees to potential heat illness, often citing employers and proposing significant penalties for failing to provide to employees who work in high heat conditions with adequate drinking water, shade, training, and/or cool-down periods.  Furthermore, as noted by the California Supreme Court in Brinker v. Superior Court, monetary remedies for the denial of meal and rest breaks “engendered a wave of wage and hour class action litigation” when added to the California Labor Code more than a decade ago.

The California Legislature has brought these two trends together by  amending California Labor Code Section 226.7 to include penalties for employers’ failing to provide “Cool Down Recovery Periods” (“CDRPs”) to prevent heat exhaustion or stroke.  The requirement to provide CDRPs kicks in January 1, 2014, after which California employers will be required to pay a wage premium for failing to provide CDRPs to employees.  This premium pay is akin to the premium pay already required for violations of California’s meal period and rest break laws.  The amendment is sure to trigger substantial litigation in California, and cross over into Cal/OSHA enforcement as well.

California’s Heat Illness Prevention Statute

California employers have long been aware of California’s Heat Illness Prevention statute, Title 8 Section 3395(d), which obligates employers to provide training and access to shade and adequate drinking water for employees who work outdoors in high heat conditions.  Pursuant to the Heat Illness statute, employers have also been required to maintain one or more shaded areas, with either open-air ventilation, forced ventilation, or forced cooling, and employers are required to allow employee access and encourage employees to access these shaded or cooled areas for cool down periods of no less than five minutes or as employees feel the need to do so.  Historical Cal-OSHA Board decisions and Standard Board committee notes have refused to characterize these cool down periods as work-free breaks; i.e., employers may require employees to continue working during periods when they are in shade or air conditioned locations.

Although heat illness has been an enforcement focus across the country, Cal-OSHA is the only OSHA scheme that has its own Heat Illness specific standard.  While federal OSHA has increased its use of the General Duty Clause to cite heat illness issues, Cal-OSHA has led the way in this enforcement space.

California Labor Code Section 226.7

Pursuant to California Labor Code section 226.7, employers are already required to pay a penalty of one hour of pay for any failure to provide a non-exempt employee with a meal period and an additional hour of pay for any failure to provide a non-exempt employee with a rest break.  This law has produced numerous class action lawsuits throughout California.  Under the recent CDRP amendment, any failure to provide a cool down recovery period will obligate the employer to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that a recovery period is not provided.  Employers now face more than just serious citations under Section 3395(d), but also cited or sued by employees (or classes of employees) for failure to provide CDRPs pursuant to California Labor Code Section 226.7.

Pursuant to this statute, California employers have suffered through a barrage of wage and hour single plaintiff and class action lawsuits related to California’s meal and rest break requirements under Section 226.7.  This recent history has shown that compliance with these work-free periods is difficult, and demonstrating compliance is even more so.  More importantly, the potential penalties and civil judgments are extremely high.

The Amended Statute

On October 10, 2013, that changed.  The California Legislature joined Cal-OSHA’s cause and signed a new bill into effect amending California Labor Code Section 226.7 to include penalties for failure to provide CDRPs.  Section 226.7 provides in pertinent part:

If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided. Continue Reading New California Law Requires Employers to Provide “Cool-Down Recovery Periods”

By Eric J. Conn, Head of Epstein Becker & Green’s OSHA Practice Group

OSHA recently announced a campaign to raise awareness about the hazards likely to cause musculoskeletal disorders (MSDs) among health care workers responsible for patient care.  Common MSDs suffered in the patient care industry include sprains, strains, soft tissue and back injuries.  These injuries are due in large part to over exertion related to manual patient handling activities, often involving heavy lifting associated with transferring and repositioning patients and working in awkward positions.

“The best control for MSDs is an effective prevention program,” said MaryAnn Garrahan, OSHA’s Regional Administrator in Philadelphia. “[OSHA’s] goal is to assist nursing homes and long-term care facilities in promoting effective processes to prevent injuries.”

As part of the campaign, OSHA will provide 2,500 employers, unions and associations in the patient care industry in Delaware, Pennsylvania, West Virginia and the District of Columbia with information about methods used to control hazards, such as lifting excessive weight during patient transfers and handling.  OSHA will also provide information about how employers can include a zero-lift program, which minimizes direct patient lifting by using specialized lifting equipment and transfer tools.  Here is a resource regarding Safe Patient Handling from OSHA’s website.

Employers in the healthcare industries should be on high alert, because whenever OSHA provides information about hazards it believes are present, a focus on enforcement is soon to follow.  This is particularly true when it comes to hazards for which OSHA has no specific standards or regulations, like ergonomics.  In these circumstances, OSHA is limited in its enforcement to use of Sec. 5(a)(1) of the OSH Act – the General Duty Clause.  The General Duty Clause is used by OSHA to issue citations in the absence of a specific standard, in situations where employers have not taken steps to address “recognized serious hazards.”  Efforts like OSHA’s present campaign to advise healthcare employers about hazards in their workplaces, is OSHA’s way of making you “recognize” the hazard, so the Agency can more easily prove General Duty Clause violations.

Of course, there are plenty of other reasons that healthcare employers should take note of the rate of MSD cases in patient care work.  Continue Reading OSHA Launches Ergonomics Campaign in Healthcare Industries

By Frank C. Morris, Jr. and Jordan B. Schwartz

An employer’s wellness program—despite certain “penalty” provisions—was recently held not to be discriminatory under the Americans with Disabilities Act (“ADA”) by the U.S. Court of Appeals for the Eleventh Circuit in Seff v. Broward County.  The Eleventh Circuit found the wellness program, sponsored by Broward County, Florida (“County”), was established as a term of the County’s insured group health plan and, as such, fell under the ADA’s bona fide benefit plan “safe harbor” provision.  This ruling is welcome news for employers with or considering wellness programs.

However, if the County’s wellness program had not been found to be a part of the County’s health benefits plan, then potential plaintiffs or the Equal Employment Opportunity Commission (“EEOC”) would likely have argued that the wellness program runs afoul of the EEOC’s views on “voluntariness” requirements for employer-sponsored wellness programs.

The ADA’s Impact on Wellness Programs

Wellness initiatives seek to boost employee productivity and reduce both direct and indirect medical costs, which are desirable outcomes for employers.  Employer-sponsored wellness programs have grown exponentially over the past decade, as employers have increased their focus on controlling health care costs and improving the overall safety and health of employees.  According to recent studies, approximately 46% of participating employers had implemented wellness programs.  Despite the growing popularity and positive aspects of wellness programs, legal uncertainties surrounding these programs—including restrictions imposed by the ADA, the Genetic Information Nondiscrimination Act (“GINA”), and the Health Insurance Portability and Accountability Act (“HIPAA”)—have presented obstacles to their implementation and growth.

Certain ADA restrictions have contributed to many employers declining to start wellness programs. Specifically, the ADA prohibits employers from making disability-related inquiries or requiring medical examinations of prospective or current employees unless they are job-related or subject to a business necessity exception. On the other hand, voluntary medical exams are permitted so long as the information obtained is kept confidential and not used to discriminate. There is little guidance, however, either from the courts or the EEOC, analyzing whether an employer-sponsored wellness program that encourages participation by providing incentives, or penalizes non-participation, can be considered “voluntary” and therefore permissible under the ADA.

The ADA has certain safe harbors for insurers and bona fide benefit plans that exempt such programs from ADA restrictions. Under these safe harbors, employers, insurers, and plan administrators are permitted to establish a health insurance plan that is “bona fide” based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law. Thus, if a wellness program qualifies for the ADA’s safe harbor provision, an employer need not worry whether such program otherwise would have been considered voluntary. Notably, the EEOC has not addressed wellness programs and the ADA’s safe harbor provision.

Seff v. Broward County

In October 2009, the County adopted a wellness program for its employees as part of its health plan open enrollment. The wellness program consisted of three parts: (1) a biometric screening consisting of a “finger stick” to measure glucose and cholesterol; (2) disease management for five specified conditions; and (3) an online Health Risk Assessment (“HRA”). Participation in the program was not required as a condition of participation in the County’s health plan, but employees who did not undergo the screening or complete the HRA incurred a $20 bi-weekly charge subtracted from their paychecks.

In response to this program, current and former County employees who enrolled in the County’s health insurance plan and incurred the $20 bi-weekly fee filed a class action lawsuit in the U.S. District Court for the Southern District of Florida. They alleged that the wellness program’s biometric screening and online HRA violated the ADA’s prohibition on non-voluntary medical examinations and disability-related inquiries. The County argued that its wellness program was part of its health plan and, as such, fell under the ADA’s safe harbor provision.

The primary question addressed by the district court was whether the wellness program was a “term” of a bona fide benefit plan, which would allow it to come within the ADA’s safe harbor provision for such plans. In granting summary judgment to the County, the district court determined that the program was indeed a “term” of the County’s group health plan based on the following three factors:

  1. The health insurer offered the wellness program as part of its contract to provide insurance, and paid for and administered the program;
  2. The wellness program was available only to plan enrollees; and
  3. The county presented a description of the wellness program in at least two employee benefit plan handouts. Continue Reading Employer-Sponsored Wellness Program Held Lawful Under the ADA

By Eric J. Conn

In August of 2010, a Delta Air Lines (“Delta”) baggage handler was fatally injured in a workplace accident, when the employee was ejected from a baggage tug vehicle while not wearing a seat belt.  As a result of this incident, Delta was cited by OSHA in February 2011 for alleged violations of regulations under the Occupational Safety and Health Act, including specifically, 1910.132—relating to personal protective equipment.

Corporate-Wide Settlement

To resolve the citations, Delta entered into a settlement agreement with OSHA on April 17, 2012 that required Delta to pay a modest penalty, $8,500, but also committed Delta to install seat belts on similar industrial vehicles operated at 90 of Delta’s locations nationwide over the next year.  Delta also committed to provide seatbelt training and to mandate the use of seatbelts for 16,000 of its employees.  Delta also agreed to waive its right to demand inspection warrants, and permit OSHA to monitor this issue. Finally, the agreement stipulates that general monitoring of implementation of this corporate-wide abatement will be conducted by a third party, not OSHA.

The Delta agreement was one of the first Corporate-Wide Settlement Agreement (“CSA”) reached under OSHA’s latest June 2011 Guidelines for Administering Corporate-Wide Settlement Agreements.  Under these guidelines OSHA expanded its use of the CSA to a broader range of enforcement cases, including high profile fatality cases.  This type is settlement has special implications for the airline industry, in which employers inherently operate at dozens or even hundreds of sites—magnifying both the potential penalties and compliance costs.  See our previous posts about the risks of enterprise enforcement.

Settlement in Context

Delta is a participant in OSHA’s Voluntary Protection Program (“VPP”).  On its website OSHA states “VPP corporate applicants must have established, standardized corporate-level safety and health management systems, effectively implemented organization-wide as well as internal audit/screening processes that evaluate their facilities for safety and health performance.”  Despite Delta being an active partner with OSHA over the last decade, the settlement agreement appears to be favorable to the Agency.  On the other hand, Delta avoided inclusion in OSHA’s Severe Violator Enforcement Program (“SVEP”), which can be an option when there is a fatality and OSHA finds “one or more willful or repeated violations.”  If SVEP qualification was on the table in these negotiations, it would certainly have given OSHA substantial leverage. Continue Reading Airlines Should Buckle-up for More OSHA Scrutiny

By Paul H. Burmeister

The OSHA/Hyatt Hotels saga continued with a recent exchange of letters between OSHA and the hotel chain’s attorney.  In April, OSHA issued a “5(a)(1) letter” to the CEO of Hyatt Hotels, indicating that OSHA believed there were ergonomic risks associated with the daily work activities of the company’s housekeeping staff.  The letter put the hotel chain “on notice” that while OSHA did not believe that a “recognized hazard” existed at the  time of the inspection, such that a General Duty Clause citation should issue, if the same hazard was later identified in a subsequent inspection, OSHA would assert that this letter made the hazard a recognized one, for purposes of enforcement.  Therefore, if the hotel chain does not follow OSHA’s recommendations, subsequent inspections would likely result in a citation.  As well publicized as this battle has been, OSHA would likely take the same position with other hotel operators.  In other words, the entire industry may now be “on notice.”

The OSHA letter culminated what was nearly a year-long OSHA investigation of Hyatt hotels across the country.  The inspection activity was prompted in 2010 by multiple employee complaints filed in concert by housekeepers (through their Union, Unite HERE) across the country complaining of ergonomic injuries related to bending, stooping, twisting, and lifting while cleaning and making beds.

Hyatt responded to the OSHA letter through counsel and pointed out that despite the numerous employee complaints, OSHA did not have the evidence to issue one citation to the hotel chain.  In its response letter, Hyatt also reiterated its serious concern that the housekeepers’ union was using the Agency to drive its organizing efforts in the hospitality industry.

Hotel employers should be on alert for OSHA inspections at their properties.  As OSHA inspections involve interaction with local management, training at the property level is key to successfully managing an OSHA inspection.  Hotel operators with more than one location should also be aware of OSHA’s efforts to amplify the impacts of a single enforcement action throughout an entire corporate enterprise and to pursue follow-up inspections at related facilities in search of high dollar Repeat violations.  Accordingly, OSHA activity at one of your facilities should be clearly communicated to other similarly-situated facilities, and any of OSHA’s findings should be corrected throughout the enterprise.

by Margaret C. Thering and Lauri F. Rasnick

Violence against women has been in the headlines lately – the reauthorization of the Violence Against Women Act is engendering vigorous debate, and as of last month, federal agencies were ordered to implement policies to assist their employees who are victims of domestic violence.  Also last month, the National Institute for Occupational Safety and Health and the Injury Control Research Center at West Virginia University published a paper entitled “Workplace Homicides Among U.S. Women: The Role of Intimate Partner Violence” in the Annals of Epidemiology, which found that from 2003 to 2008, 648 women were murdered in the workplace.  Employer liability can result from workplace violence incidents, even when committed by a non-employee.  Indeed, although the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues in various industries.  For more details, see our previous post here on the OSHA Law Update Blog: Workplace Violence Policies and Background Checks Are Essential Components of a Prevention Plan.

Given these trends, employers should review ways they can prevent domestic violence in the workplace and accommodate employees who may be victims of domestic violence.

Read more on the Employer Defense Law Blog.

By Amanda R. Strainis-Walker and Eric J. Conn

With the dog days of summer around the corner, OSHA just put out a press release reminding employers with outside workplaces about OSHA’s focus on the hazards of working in high heat.  The press release reinvigorates OSHA’s heat-related illness campaign that began leading into last summer, when OSHA produced a great deal of public information about heat-related illness, including a dedicated heat illness information page on OSHA’s website, a YouTube video, public press statements, speeches by senior Department of Labor and OSHA officials, and even a Heat Safety Smartphone App.

The Smartphone App was the first of its kind for OSHA, and was intended to literally put information into the hands of employees and employers in the field about how to identify the heat index value, recognize heat illness symptoms, understand the conditions in which heat can become a health issue, and how to treat it (e.g., take breaks in the shade, drink water, etc.).

The Heat App also reiterates OSHA’s recommended four-step program for employers with outside worksites.  These steps include:

  1. Develop a heat-related illness prevention plan that addresses: (a) supplies (i.e., adequate water supplies and provisions for rest areas); (b) emergency planning and response; (c) worker acclimatization periods; (d) modified work schedules (i.e., planning heavy work early in the day); and (e) training.
  2. Train employees in your heat-related illness prevention plan and safe work practices before they are required to work outside in the heat.  The training should include how to identify risk factors for heal-related illness, and explain the importance of drinking small quantities of water often, the value of acclimatization periods, and the procedures for responding to possible heat-related illness symptoms.
  3. Track the weather at outside worksites daily, and assess the risk to workers.  Know how hot it will be during scheduled work activities, and use that information to plan work and determine which preventive measures should be taken.
  4. Implement your heat-related illness prevention plan when the heat index is at or above 80°F.  Adjust the risk level based on: (a) site conditions (e.g., direct sunlight vs. shade, breeze, etc.); (b) work load; and (c) the type of protective clothing employees are required to wear (e.g., flame retardant clothing).

OSHA has developed a chart for critical actions that employers should take to help prevent heat illnesses at different heat indexes.  OSHA also continues to dedicate substantial resources to talking and producing public materials about heat-related illness to establish this as a “recognized hazard,” and to identify feasible steps employers can take to minimize hazards associated with heat illness.  This goes hand-in-hand with what OSHA must prove to establish violations under Section 5(a)(1) of the OSH Act (aka, the General Duty Clause).

After initiating the heat-related campaign last summer, OSHA issued at least 10 General Duty Clause violations to employers for failing to have a heat-related prevention plan, among other allegations.  The types of work being performed last year that were subject to General Duty Clause citations included landscaping, commercial farming, outdoor construction, and outdoor maintenance.  For example, a landscaping company allowed a new employee, who became ill with a heat-related illness, to work in the direct sunlight on a hot August day without breaks, an acclimatization program for new employees, or a comprehensive heat-related illness prevention plan.

Now in the second year of the campaign, Employers should expect this summer a surge in such violations for employers with employees exposed to heat illnesses.  OSHA’s heat-related prevention message is clear, “Water.  Rest.  Shade.”  Employers with employees exposed to hazards associated with heat illnesses should follow OSHA’s four step program, or they could find themselves feeling OSHA’s enforcement heat.

For more OSHA guidance on the topic, take a look at OSHA’s heat-related illness page, and here is a link to some of last year’s heat related General Duty Clause citations.

By Kara M. Maciel

Sadly, workplace violence continues to be a topic that challenges many organizations.  Indeed, as the news reports continue to remind us, employees and non-employees often take out their aggression and violent acts within the workplace.  As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and non-fatal assaults and violent acts committed within the workplace, and, in particular, within the healthcare industry.  One of the struggles that employers face is trying to prevent violent conduct by third-party non-employees who are generally beyond the control of the employer.

Employers can face significant liability as a result of workplace violence incidents, even when committed by a non-employee.  For example, although the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues in various industries.  OSHA also offers all employers guidance for preparing for and handling emergencies and for developing a workplace violence program, including the adoption of a zero-tolerance policy. In its “Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers,” OSHA sets forth uniform procedures for responding to incidents and complaints, and conducting inspections in the health care industry, and provides recommendations for workplace violence prevention.

In the absence of a specific standard, OSHA can still cite employers under the catch-all “General Duty Clause” of the OSH Act.  This provision requires employers to furnish employees with a working environment free from hazards that: (a) are recognized by the employer or the employer’s industry; (b) have the potential for causing death or serious physical harm; and (c) may be abated by feasible means.  In a compliance directive for “Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents,” released late last year, OSHA outlined the procedures for using the General Duty Clause to cite employers for not adequately protecting against incidents of workplace violence.

Some recent enforcement actions include a hospital in Connecticut, which was cited for failing to provide adequate safeguards against workplace violence when employees in the psychiatric ward, emergency ward, and general medical floors were injured by violent patients.  Similarly, another OSHA inspection identified over 115 instances in which employees of a psychiatric hospital and clinic were assaulted by patients.

OHSA’s Guidelines set forth a number of recommendations that all organizations should implement to prevent workplace violence, including:

  • Create a Written Zero-Tolerance Workplace Violence Prevention Program
  • Conduct Employee Training
  • Screen Patients for Potential Violence
  • Ensure Security Personnel are Available and Trained
  • Implement System to Flag Patient’s History of Violence

A critical aspect of a prevention plan is the implementation of effective background checks of applicants and employees in order to ensure that individuals with a violent history are carefully screened.  However, employers should be mindful that several federal and state laws restrict the kind of information an employer may be able to obtain concerning an applicant’s qualifications, job abilities, trustworthiness, and propensity towards violence.

For example, a number of states prohibit most employers from considering an applicant’s arrest record if the arrest did not lead to conviction.  Further, private employers may not bar individuals from applying for or holding jobs based upon criminal convictions unless the convictions are job-related or the individual poses a direct threat to public safety or property.

Importantly, with respect to potential discrimination issues, the Equal Employment Opportunity Commission (the “EEOC”) takes the position that because the reliance on arrest and conviction records may have a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment.  However, the EEOC does permit employers to rely on conduct which indicates unsuitability for a particular position as a basis for exclusion, and employers will need to show that that the exclusion is job-related and consistent with business necessity.  The EEOC is expected to issue updated guidelines with respect to criminal background checks.  As one EEOC Commissioner recently commented at a law conference, the EEOC is closely scrutinizing criminal background checks and will likely require employers to provide some type of notice or to conduct an “individualized assessment” with applicants who report criminal convictions on their application before the employer can bar them for employment.  The EEOC hopes that through this “assessment” the employer can then effectively evaluate whether an exclusion based on the conviction is job related and consistent with business necessity.  The EEOC’s revised guidelines are expected by the end of this month.

Accordingly, by being mindful of workplace violence issues and the potential for liability from OSHA and other federal agencies, employers must be prepared to implement thorough and comprehensive policies and procedures designed to prevent workplace violence.  Part and parcel of any prevention plan is a legally enforceable background check policy and a well-trained Human Resources staff to avoid running afoul of any federal or state discrimination law.