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The Not Safe for Work Blog provides focused insight and analysis on the latest occupational safety & health issues.

This article was written by Janine Fletcher-Thomas and Matthew Luzadder, and originally posted on Kelley Drye’s Labor Days Blog.

In August 2018, Illinois governor Bruce Rauner signed House Bill 1595 (“HB 1595”) amending the Illinois Nursing Mothers in the Workplace Act (the “Act”) to provide paid break time to nursing mothers “as needed” to express milk during work hours. The new requirement took effect immediately, and applies to all Illinois employers with more than five employees.

HB 1595 changes the Act in the following ways:

  • Nursing breaks “may” still run concurrently with other breaks. The prior version of the Act stated that the break time “must, if possible” run concurrently with any break time already provided.
  • Reasonable lactation breaks must be compensated. In light of the Act’s “as needed” language, and absent additional guidance from the State, employers should consider following the most expansive approach, i.e., granting nursing mothers paid break time when requested to express milk.
  • In addition, the amendment specifies that the reasonable, now paid, breaks requirement runs only “for one year after the child’s birth.”
  • Finally, the original Act excused employers from providing additional break time for nursing/expressing employees “if to do so would unduly disrupt the employer’s operation.” HB 1595 changed that affirmative defense language; now, in order to be excused from the additional paid breaks requirement, Illinois employers must establish “undue hardship,” a more demanding standard borrowed from the Americans with Disabilities Act and the Illinois Human Rights Act (“IHRA”). Under the IHRA, “undue hardship” is defined as an “action that is prohibitively expensive or disruptive” when considering its nature and cost, the overall financial resources of the facility, the overall financial resources of the employer, and the type of operation of the employer. The employer bears the burden of proving an undue hardship. Therefore, employers should take a considered approach when rejecting break time for expressing milk based on undue hardship to the employer.

Remember the Affordable Care Act (“ACA”) requires employers to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” See 29 U.S.C. 207(r).

Since the amendment is now in effect, Illinois employers should review their current nursing policy to ensure it complies with the recent amendment. If not, employers should revise it as soon as possible.

  • 11/29/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Property Maintenance Company After Employee Suffers Burn Injuries
  • 11/28/2018 – Region 4 OSHA News Release – U.S. Department of Labor Announces Initiative to Increase Awareness Of Trenching and Excavation Hazards and Solutions
  • 11/27/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Two Florida Roofing Contractors For Exposing Employees to Fall Hazards
  • 11/27/2018 – Region 9 OSHA News Release – U.S. Department of Labor Issues Notices of Safety Violations Following Fatality at Army Reserve Facility in California
  • 11/26/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Contractor For Repeatedly Exposing Employees to Fall Hazards
  • 11/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Food Processor For Amputation and Other Hazards
  • 11/20/2018 – OSHA National News Release – U.S. Department of Labor Announces Assistance for California Wildfires Recovery
  • 11/20/2018 – OSHA National News Release – U.S. Department of Labor Focuses on Worker Safety and Pay During Holiday Shopping Season
  • 11/19/2018 – Region 2 OSHA News Release – U.S. Department of Labor Cites New Jersey Manufacturer
  • 11/19/2018 – Region 4 OSHA News Release – U.S. Department of Labor Continues to Provide Support in Areas Hardest Hit by Hurricane Michael
  • 11/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Window and Door Manufacturer After Employee Suffers Partial Finger Amputation
  • 11/16/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Staffing Agency Following Heat-Related Fatality

 

  • 11/13/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Manufacturer for Exposing Employees to Amputation, Fall, and Other Hazards at Four Facilities
  • 11/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Contractor after Employee Fatally Injured in Explosion at Alabama Worksite
  • 11/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Two Florida Contractors After Employee Suffers Injuries
  • 11/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor and Associated General Contractors of Georgia Invite Employers to Join Winter Weather Safety Stand-Down
  • 11/08/2018 – Region 9 OSHA News Release – U.S. Department of Labor Cites U.S. Postal Service After Heat Exposure Hospitalizes Las Vegas Mail Carrier
  • 11/07/2018 – OSHA Trade Release – U.S. Department of Labor Issues Final Rule on Crane Operator Certification Requirements
  • 11/06/2018 – Region 1 OSHA News Release – U.S. Department of Labor Cites Massachusetts Contractor For Exposing Workers to Fall Hazards
  • 11/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Employers at Georgia Distribution Center
  • 11/05/2018 – OSHA Trade Release – U.S. Department of Labor Provides Interim Compliance Guidance for Crane Operators
  • 11/05/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Contractor For Exposing Employees to Fall Hazards

 

  • 10/31/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Tank Cleaning Company For Confined Space, Fire, and Explosion Hazards
  • 10/31/2018 – Region 6 OSHA News Release – U.S. Department of Labor Cites Texas Underground Tank Contractor for Excavation Hazards
  • 10/30/2018 – OSHA Trade Release – U.S. Department of Labor Renews Partnership with Electrical Contractors and Associations to Protect Worker Safety and Health
  • 10/30/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Framing Company For Exposing Employees to Falls
  • 10/30/2018 – Region 6 OSHA News Release – U.S. Department of Labor Cites Texas Metal Recycling Company After Employee Suffers Injury
  • 10/30/2018 – Region 7 OSHA News Release – Missouri Plumbing Contractor Admits to Violating Trench Safety Requirements
  • 10/25/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Company for Protective Equipment Violations
  • 10/25/2018 – Region 6 OSHA News Release – U.S. Department of Labor Signs Alliance with Texas Contractors Association To Protect Safety and Health of Construction Workers
  • 10/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites South Florida Farm For Exposing Employees to Lightning Strikes
  • 10/19/2018 – OSHA Trade Release – OSHA and Society of Maintenance and Reliability Professionals Form Alliance to Protect Employee Safety and Health
  • 10/19/2018 – Region 1 OSHA News Release – U.S. Department of Labor Orders Massachusetts Railway to Pay $85,000 to Employee Subjected to Retaliation after Reporting Injury
  • 10/19/2018 – Region 4 OSHA News Release – U.S Department of Labor Cites Roofing Contractor After Accident at Florida Worksite
  • 10/19/2018 – Region 8 OSHA News Release – U.S. Department of Labor and Colorado Contractors Host Trench Safety Summit
  • 10/17/2018 – OSHA Trade Release – OSHA Launches Program to Target High Injury and Illness Rates
This article was originally written by Jennifer Fischer and posted on Kelley Drye’s Labor Days Blog.

Effective October 29, 2018, the New Jersey Sick Leave Law requires employers to allow employees to accrue 1 hour of earned sick leave for every 30 hours work, up to 40 hours each year.  The law permits employers to create policies that provide additional leave time.  Here is a link to the law from the State of New Jersey Department of Labor and Workforce Development website.

Since we originally posted about the Paid Sick Leave Law, we’ve received a number of questions about how the Sick Leave Law will impact various employers.  Here are some FAQs that we’ve received.   Have a question that we didn’t cover?  Let us know.

Q: When does the law go into effect?
A: October 29, 2018.

Q: Is there an exception for small businesses?
A: No.  All employers are required to provide their employees with earned sick time.

Q: Are there any regulations for this new law?
A: The Department of Labor and Workforce Development prosed new regulations in September.  A public hearing will be held on the proposed new rules will be held on November 13, 2018.  Written comments must be submitted by December 14, 2018.

Q: Some of our employees work part-time.  Do they earn the same amount of sick time as full-time employees?
A: All employees, regardless of full-time or part-time status, earns 1 hour of paid sick leave for every 30 hours that they work.

Q: Our employees live in New Jersey but our office is not located in New Jersey.  Do we have to comply with the new paid sick leave law?
A: No.  The paid sick leave only applies to employees working in New Jersey.

Q: Do we need to offer paid sick leave to the independent contractors that work for us?
A: According to the new law, all “employees” must be allowed to earn paid sick leave.  The law defines “employee” as “an individual engaged in service to an employer in the business of the employer for compensation.”

However, the proposed regulations suggest that the “ABC Test” found in N.J.S.A. 43:21-19(i)(6)(A), (B), and (C) be used to determine whether an individual is an employee or an independent contractor under the new paid sick leave law.

Q: We employ per diem health care workers.  Are they exempt from coverage?
A: It depends.  The new law covers “employees” and the definition of “employee” “does not include . . . a per diem health care employee.”  A “per diem health care employee” means:
(1) health care professional licensed in the State of New Jersey employed by a health care facility licensed by the New Jersey Department of Health;
(2) any individual that is in the process of applying to the New Jersey Division of Consumer Affairs for a license to provide health care services who is employed by a health care facility licensed by the New Jersey Department of Health; of
(3) any first aid, rescue or ambulance squad member employed by a hospital system.

Additionally, a “per diem health care employee” “shall not include any individual who is certified as a homemaker-home health aide.”  This means homemaker-home health aides are considered “employees” under the NJ Paid Sick Leave law and must be covered, even if they are per diem employees.

Q: Our employees earn money based on commission or tips.  How will do we pay them for their paid sick leave days?
A: The law states that employees must be paid for earned sick leave at the same rate of pay with the same benefits as the employee normally earns, “except that the pay rate shall not be less than the minimum wage required for the employee pursuant to section 5 of P.L.1966, c.113.”

The new proposed regulations suggest that “where an employee is paid by commission, whether base wage plus commission or commission only, the employer must pay the employee during earned sick leave an hourly rate that is the base wage or the State minimum wage rate, whichever is greater. . . When an employee is paid on a piecework basis, . . . to calculate the employee’s rate of pay for earned sick leave, the employer shall add together the employee’s total earnings for the seven most recent workdays when the employee did not take leave and divide that sum by the number of hours the employee spent performing the work during workdays.”

  • 10/12/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites Pennsylvania Contractor After Employee’s Electrocution
  • 10/11/2018 – Region 6 OSHA News Release – U.S. Department of Labor and Jordan Foster Construction Partner To Enhance Workplace Safety and Health at El Paso Construction Project
  • 10/10/2018 – OSHA National News Release – U.S. Department of Labor Announces Actions to Assist Americans Impacted by Hurricane Michael
  • 10/05/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites New Jersey Pet Food Manufacturer for Failure to Correct Prior Workplace Safety, Health Hazards
  • 10/05/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Ohio Craft Brewers Establish Alliance to Promote Workplace Safety in Ohio Breweries
  • 10/05/2018 – Region 5 OSHA News Release – Wisconsin Manufacturer Settles Whistleblower Allegations
  • 10/04/2018 – Region 6 OSHA News Release – U.S. Department of Labor Cites U.S. Postal Service For Repeat Safety Violations at Austin Facility
  • 10/03/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites New Jersey Lumber Company For Exposing Employees to Health Hazards
  • 10/02/2018 – OSHA Trade Release – U.S. Department of Labor Updates National Emphasis Program on Trenching and Excavation Safety
  • 10/02/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Art Supply Manufacturer For Exposing Employees to Amputation Hazards
  • 10/02/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Wisconsin Refinery for Failing to Control Hazardous Chemicals
  • 10/01/2018 – OSHA National News Release – U.S. Labor Department Awards Workplace Safety and Health Training Grants to Assist in Educating Workers, Job Creators
  • 10/01/2018 – Region 4 OSHA News Release – U.S. Department of Labor Joins Partnership to Promote Workplace Safety During Construction of Georgia STEM School
  • 10/01/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Manufacturer For Safety Violations After Employee Injury
  • 10/01/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Plastics Manufacturer For Exposing Workers to Machine Hazards

 

  • 09/27/2018 – OSHA National News Release – U.S. Department of Labor Provides Compliance Assistance Resources to Keep Workers Safe from Trenching-Related Hazards
  • 09/27/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Green Bay Meat Packer After Employee Injury
  • 09/27/2018 – Region 6 OSHA News Release – U.S. Department of Labor Cites Railcar Maintenance Company for Repeatedly Exposing Employees to Fire and Explosion Hazards
  • 09/25/2018 – OSHA News Release – Joint Regional – U.S. Department of Labor Launches Regional Emphasis Program Focused on Reducing Employee Exposure to Ammonium
  • 09/25/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Metal Forging Company, Proposes $225,046 in Penalties
  • 09/20/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Country Club for Safety Hazards
  • 09/19/2018 – Region 1 OSHA News Release – U.S. Department of Labor Cites Connecticut Employer For Exposing Employees to Fall Hazards at Construction Jobsite
  • 09/19/2018 – Region 4 OSHA News Release – U.S. Department of Labor Urges Workers and the Public to be Vigilant And Mindful of Hazards Following Hurricane Florence
  • 09/18/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Peanut Processing Facility, Places Company in OSHA’s Severe Violator Enforcement Program
  • 09/18/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Five Contractors for Safety Violations Following Florida Pedestrian Bridge Collapse
  • 09/17/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Two Companies After Fatal Fall At Communication Tower Worksite in Mississippi

 

This article was originally written by Barbara E. Hoey and Alyssa M. Smilowitz, and originally posted on Kelley Drye’s Labor Days Blog.

Recent filings show healthcare employers remain susceptible to religious discrimination claims.

In August, the EEOC filed suit against Hackensack Meridian Health (“Hackensack”), a New Jersey healthcare network, alleging an employee was harassed due to religion. According to the complaint, Hackensack hired Jojy Cheriyan in August 2015 to perform clinical informatics work. The EEOC alleges that his supervisor discovered that Mr. Cheriyan was Catholic, which sparked a strong negative reaction. According to the complaint, the supervisor “exhibited disapproval” when he observed a crucifix in Mr. Cheriyan’s office, and began treating Mr. Cheriyan in a hostile and verbally abusive manner, which included screaming at Mr. Cheriyan during meetings, belittling him and his work, tearing his work up and throwing objects at him.

The EEOC claims that Hackensack was aware of the harassment – due to Mr. Cheriyan’s complaints to management – yet failed to take reasonable corrective actions to put an end to the treatment.

At this time, the litigation is in its infancy with only the August complaint on the docket and an answer due in a few weeks. In its press release about the case, the EEOC’s New York District Director stated, “[p]eople of all religions are entitled to go to work and do their jobs without fear of harassment.”

What to Take Away From This Case? Two Lessons

1.  What types of religious items (putting aside clothing) may an employee exhibit in the workplace and when can a manager limit such? Are there restrictions?

The EEOC Compliance Manual on Religious Discrimination provides some insight but does not provide a clear answer. To some degree, the EEOC seems to say that the answer depends on whether the display is in a public place.

2.  How Should a Supervisor Handle a “Religious” Display?

It is unknown if the plaintiff’s manager in the healthcare case actually was hostile or abusive toward the plaintiff. It is likely, however, that any conversation about the crucifix became tense, and may have brought about the charge.

A supervisor should not discuss religion with employees. Period. If an issue arises regarding religious observance, a supervisor should talk to human resources and get guidance about how to speak to the employee.

Clearly, any exchange that is perceived as hostile to religion could spur a discrimination claim.

The EEOC Compliance Manual on Religious Discrimination provides the following example:

  • “Susan and Roger are members of the same church and are both employed at XYZ Corporation. Susan works as an architect in a private office on an upper floor, where she occasionally interacts with co-workers, but not with clients. Roger is a security guard stationed at a desk in the front lobby of the XYZ building through which all employees, clients, and other visitors must enter.”
  • “At a recent service at Susan and Roger’s church, the minister distributed posters with the message ‘Jesus Saves!’ and encouraged parishioners to display the posters at their workplaces in order to ‘spread the word.’ Susan and Roger each display the poster on the wall above their respective work stations. XYZ orders both to remove the poster despite the fact that both explained that they felt a religious obligation to display it, and despite the fact that there have been no complaints from co-workers or clients. Susan and Roger file charges alleging denial of religious accommodation.”

According to the EEOC guidance:

  • For Susan, XYZ Corporation “will probably be unable to show that allowing Susan to display a religious message in her personal workspace posed an undue hardship, because there was no evidence of any disruption to the business or the workplace which resulted.”
  • But for Roger, “because Roger sits at the lobby desk and the poster is the first thing that visitors see upon entering the building, it would appear to represent XYZ’s views and would therefore likely be shown to pose an undue hardship.”

In addition, employers must not forget that an employer’s rights under the First Amendment may also come into play in such situations. To make things more complicated, government employers have their own unique considerations.

As religious holidays occur throughout the fall and beyond, employers should carefully consider any display of religion in the workplace and ensure both managers and employees are educated accordingly.

  • 09/14/2018 – Region 5 OSHA News Release – U.S. Department of Labor Enters Partnership to Promote Safety During Illinois Courthouse Construction Project
  • 09/13/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Wood Pallet Manufacturer After Employee Amputation
  • 09/13/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Sawmill for Safety Violations
  • 09/10/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Woodworking Company For Exposing Employees to Fire and Explosion Hazards
  • 09/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Joins Partnership to Promote Workplace Safety During Construction Project in Georgia
  • 09/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Urges Workers and the Public to be Vigilant And Mindful of Hazards During Tropical Storm Gordon Cleanup
  • 09/05/2018 – OSHA Trade Release – U.S. Department of Labor to Hold Meeting to Solicit Public Input On Whistleblower Issues in the Finance Industry

 

This article was originally posted on Kelley Drye’s Labor Days Blog.

As employers look for creative ways to help employees manage their student loan debt, the IRS recently ruled that employer nonelective contributions to a 401(k) plan for employees who make student loan repayments would not violate the Internal Revenue Code’s contingent benefit rule. That rule prohibits an employer from making any benefit (other than matching contributions) contingent, directly or indirectly, on an employee’s making, or not making, elective deferrals under the 401(k) plan.

The guidance came in the form of a Private Letter Ruling (“PLR”), which may only be relied on by the employer who requested the ruling. Nonetheless, the PLR is instructive for other employers wishing to provide similar tax-favored benefits for employees who may not otherwise be in a position to contribute to their retirement savings.

In the PLR, the employer’s 401(k) plan provided a 5% match on eligible compensation for each pay period in which the employee made an elective deferral of at least 2% of eligible compensation. The employer proposed amending the plan to allow employees to opt out of the 5% match and, in lieu thereof, receive nonelective contributions to the plan equal to 5% of their eligible compensation for each pay period in which they make student loan repayments of at least 2% of their eligible compensation. Employees participating in the student loan repayment program would be eligible for a true-up matching contribution for any pay period in which they made elective deferrals to the plan but failed to make the 2% student loan repayment necessary to receive the nonelective contribution for such pay period. These nonelective and true-up matching contributions would be subject to the same vesting schedule as regular matching contributions and would be deposited in an employee’s account as soon as practicable after the end of the plan year if he/she were employed on the last day of the play year (except in the case of death or disability). The nonelective contributions would be subject to all plan qualification requirements and would not be treated as a match for 401(m) discrimination testing purposes (but any true-up matching contribution would be). All employees eligible to participate in the 401(k) plan would be eligible to participate in the program and could opt out prospectively at any time and resume eligibility for regular matching contributions. The employer represented that it had no intention of extending student loans to any employee eligible for the program.

To read the full advisory on the Kelley Drye website, click here.