The Jenner Effect: OSHA Releases New Best Practices on Restroom Access for Transgender Employees

By Scott Coghlan*

The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) released a new best practices guide on June 1, 2015, concerning transgender workers’ use of workplace restrooms.

OSHA’s sanitation standard already requires that all covered employers provide employees with sanitary and available toilet facilities. Generally, OSHA prohibits employers from placing unreasonable restrictions on restroom use, such as restroom facilities that are an unreasonable distance from an employee’s worksite. While many employers provide separate restrooms for men and women, OSHA does not require it. With increasing frequency, employers that provide separate restrooms are facing the issue of which restroom transgender employees should use.

Transgender individuals are those who do not identify with the gender they were assigned at birth – for example, a transgender woman may have male listed as the gender on her birth certificate and have been raised as a boy, but internally identifies as a woman. Transgender individuals may “transition” to live life as the gender they identify with in a number of different ways, including through changes to appearance, name changes, medical procedures, and changes to official identification documents.

OSHA published its new best practices guide, titled “A Guide to Restroom Access for Transgender Workers,” at the request of the National Center for Transgender Equality. With the new guidelines, OSHA seeks to ensure that transgender individuals feel safe and comfortable when using workplace restrooms. OSHA suggests that employers allow employees to use the restroom for the gender with which they identify. Thus, a transgender man should be permitted to use the men’s restroom. OSHA also offered alternative suggestions, including providing a single-occupancy, gender-neutral restroom or multiple-occupant, gender-neutral restrooms with lockable single-occupant stalls. Additionally, OSHA cautions against segregating or singling out transgender employees by requiring those employees to use restrooms that do not conform with their gender identity or by requiring transgender employees to use only specific or gender-neutral restrooms when gender-specific restrooms are available. Finally, OSHA’s new guidelines state that employees should not be required to present medical or legal documentation of their gender identity in order to have access to restroom facilities for the gender with which they identify.

OSHA’s guidelines do not place any legal requirements on employers to follow them. However, employers should keep in mind that the Equal Employment Opportunity Commission (the “EEOC”) and other agencies have interpreted Title VII’s prohibition of gender discrimination to extend to discrimination based on gender identity and transgender status. Recently, the EEOC ruled that prohibiting a transgender person from accessing restrooms for his or her gender identity constituted direct evidence of discrimination, even though the transgender person had not undergone any medical procedure to “transition.” Additionally, several states already have laws in place concerning transgender individuals’ rights to access restrooms corresponding to their gender identity.

*Scott Coghlan practices in all areas of workplace safety law. For more information about OSHA’s new best practices guide and OSHA in general, please contact: Scott Coghlan | sc@zrlaw.com | 216.696.4441

Unions Take Advantage of the NLRB’s “Quickie” Election Rules

By Sarah K. Ott*

The National Labor Relations Board (the “NLRB”) recently released data revealing a significant increase in union-filed representation petitions since the NLRB implemented its new “ambush” election rules on April 14, 2015 (“New Rules”). The New Rules completely changed the decades-old representation election process, saddled employers with added administrative obligations, and significantly limited an employer’s ability to argue bargaining unit issues prior to a representation election. The New Rules also significantly shortened the time after a petition is filed that an election may be held. Under the New Rules, an election may be held as soon as thirteen days after a union files a petition. Zashin & Rich described the anticipated changes in the New Rules in a recent Employment Law Quarterly Article titled “NLRB Pulls a Fast One: Final “Quickie” Election Rules for Union Elections Adopted” (Winter 2015 Employment Law Quarterly, Vol. XVII, Issue i). This “quickie election” process is expected to allow employers little time to mount an effective campaign to educate employees about the downsides of unionization. The NLRB’s new data suggests that unions are taking advantage of the benefits of the New Rules to employers’ detriment.

From March 13 to April 13, 2015 (the month prior to the New Rules’ effective date), unions filed 212 representation petitions. During the month immediately following the New Rules’ implementation, from April 14 to May 14, 2014, the NLRB received 280 election petition filings. This number is also well above the monthly average of representation petition filings for 2012 and 2013 which were 164 and 165 respectively. If some unions sat on petitions for representation until the New Rules came into effect in order to take advantage of the changes, there may be some leveling off in the number of election petition filings in the coming months. However, some effects of the New Rules are independent of the increase in election petition filings.

In addition to the significant increase in the number of petitions filed immediately following the New Rules implementation, the number of days between the filing of a petition and an election has plummeted. In 2012 and 2013, elections were typically held 38 days after a petition was filed. For representation petitions filed since April 14, 2015, elections are being scheduled for a median of 23 days after the petition was filed (a reduction in employer campaign time of 40%). Even if the number of election petition filings falls off, that would not affect the median number of days between the filing of a petition and an election. It appears clear that, as anticipated, the New Rules have drastically tilted the field against employers by reducing one of the most valuable resources available in combatting an organizing campaign: time.

The NLRB data confirms that the New Rules are a massive shift toward unions. The National Labor Relations Act grants employers the right to oppose unionization and explain to their employees why unionization is not in their best interests. However, the New Rules reduce the time employers have to make their arguments and educate their employees. While employer groups have challenged the New Rules in federal courts, this week, a federal judge in Texas rejected one such effort contending that the New Rules violate the National Labor Relations Act and the Administrative Procedure Act. While a case filed by the U.S. Chamber of Commerce remains alive in the D.C. Circuit, employers must be prepared for the likelihood that the New Rules are here to stay.

Employers who oppose unionization should consider regular communication about the perils of union representation with employees prior to an organizing drive. In addition, employers should consult with counsel about legal means to avoid unionization. Additionally, upon receiving notice that a union has filed a representation petition regarding their employees, employers should immediately seek counsel as the New Rules do not afford employers the luxury of time and the numbers show that unions have taken advantage of the New Rules.

Sarah K. Ott practices in all areas of labor and employment law. For more information about the NLRB’s new election rules, please contact: Sarah K. Ott | sko@zrlaw.com | 216.696.4441

DOL Releases Updated FMLA Forms

By Patrick Watts*

The U.S. Department of Labor (“DOL”) recently released revised model Family and Medical Leave Act (“FMLA”) forms to administer FMLA leave. Pursuant to the Paperwork Reduction Act (“PRA”), the Office of Management and Budget (“OMB”) reviews the FMLA forms every three years. The most-recent forms expired on February 28, 2015.

The new forms are effective until May 31, 2018, and may be accessed through the links below or the DOL Wage and Hour Division’s FMLA webpage:

• WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition
• WH-380-F: Certification of Health Care Provider for Family Member’s Serious Health Condition
• WH-381: Notice of Eligibility and Rights & Responsibilities
• WH-382: Designation Notice
• WH-384: Certification of Qualifying Exigency For Military Family Leave
• WH-385: Certification for Serious Injury or Illness of Covered Servicemember – for Military Family Leave
• WH-385-V: Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Some forms contain minor revisions and others have remained the same. Among the revisions, the FMLA forms now include references to medical record confidentiality and disclosure requirements contained in the Genetic Information Nondiscrimination Act (“GINA”).

Employers covered by the FMLA are not required to use these forms for FMLA leave. However, all employers who choose to use their own forms should review the updated forms to ensure their forms are current and that such customized forms do not seek prohibited information or information that exceeds the information permitted by the FMLA. Employers should also remember that state law may provide greater family and medical leave entitlement than the FMLA and/or require that employers provide other forms or information.

*Patrick Watts practices in all areas of labor and employment law and advises employers on all aspects of the FMLA. For more information about the updated FMLA forms or the FMLA in general, please contact: Patrick Watts | pmw@zrlaw.com | 216.696.4441

Ohio Public Sector Update: Convicted Felons Will No Longer Have to Disclose Status on Employment Application

By Jonathan J. Downes*

Beginning on June 1, 2015, Ohio will no longer ask “Have you ever been convicted of a felony?” on civil service applications for any state government position. The Ohio Department of Administrative Services will voluntarily remove this question from the application for thousands of state government positions, including highway workers and prison guards. Instead, job applicants for Ohio civil service positions will not have to disclose past crimes until the interview stage.

In making this change, Ohio voluntarily joined the “Ban the Box” movement. Generally, the “Box” refers to a square that, when checked, indicates an individual has a criminal background. Proponents argue such inquiries often automatically disqualify applicants that check the box and increase chances of recidivism. For employers, “Ban the Box” laws pose an increased burden on the job application and screening process.

This is the first time that Ohio has adopted “Ban the Box” practices on a statewide level. However, the state was not the first Ohio public employer to implement “Ban the Box” practices nor may this change be the last. In February 2015, Ohio legislators introduced House Bill 56 which would prohibit any Ohio state agency or political subdivision of Ohio from inquiring into or considering criminal backgrounds until the employer has selected an applicant for the position. The proposed bill applies to counties, townships, and municipal corporations, but has not moved past the House Commerce and Labor Committee. Lucas and Stark Counties and Cleveland, Cincinnati, and Canton already have “Ban the Box” measures in place. These measures currently only apply to public sector employers. However, the Equal Employment Opportunity Commission recommended banning the box on job applications as a best practice in its 2012 enforcement guidance.

Employers need to understand what, if any, “Ban the Box” restrictions apply to them and should follow further “Ban the Box” developments.

*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience advising public entities and employers. If you have questions about state or local “Ban the Box” laws and regulations or other hiring concerns, please contact Jonathan Downes | jjd@zrlaw.com | 216.696.4441

OSHA Reveals a New Version of the “It’s the Law!” Workplace Poster

By Scott Coghlan*

The Occupational Safety & Health Administration (“OSHA”) recently released a new version of its “Job Safety and Health – It’s the Law!” poster, which informs employees of their rights and employers of their legal obligations concerning workplace safety. OSHA requires covered employers to display the poster in a conspicuous place where employees can see it. Covered employers include almost all private-sector employers.

The poster, which is available to download for free from OSHA’s website, informs employees of their rights and reminds employers of their obligations to provide a safe workplace. While employers are not required to replace an older version of the poster with the new version to meet their legal obligation to display a poster, OSHA made changes in the new version. The most important change is that employers are now required to report each work-related fatality, hospitalization, amputation, and loss of an eye to OSHA.

The poster informs employees of their rights regarding workplace safety and health. The poster also informs employers of their legal obligations concerning workplace safety and health. In particular, the poster has been updated to include employers’ notification obligations. The poster is also available in several other languages, including Chinese, Korean, and Spanish. While OSHA does not require employers to display the poster in any languages in addition to English, it does encourage them to put up a poster in Spanish. OSHA requires copies of the poster to be at least 8.5” by 14” and in size 10 type. To download a free copy of the poster and review OSHA’s requirements concerning display of the poster, employers should visit OSHA’s website at:

www.osha.gov/publications/poster.html.

*Scott Coghlan practices Workers’ Compensation Law. He has extensive experience counseling employers as to workplace safety and related issues. For more information about OSHA’s new poster or workers’ compensation law, please contact: Scott Coghlan | sc@zrlaw.com | 216.696.4441

The EEOC Issues Proposed Changes to the ADA’s Regulations on Wellness Programs

By Patrick J. Hoban*

On April 20, 2015, the Equal Employment Opportunity Commission (“EEOC”) announced a Notice of Proposed Rulemaking (“NPRM”) concerning amendments to the EEOC’s regulations and guidance on the Americans with Disabilities Act (“ADA”). Most importantly, the NPRM clarifies the EEOC’s position on wellness programs with respect to the ADA by stating that incentives do not automatically render a program involuntary. Specifically, the proposed changes clarify the definition of “voluntary employee health program” under the ADA, limit the extent to which employers may incentivize participation in a wellness program, and add provisions relating to confidentiality.

Employers use wellness programs as a means of promoting healthy behavior among employees and keeping health care costs down. Wellness programs may include providing workout facilities and assistance with healthy eating or quitting smoking, as well as conducting health assessments and identifying risk factors. Wellness programs are often, though not always, offered through employer-provided group health plans. The ADA generally prohibits employers from getting medical information on employees, though it allows for medical examinations and health inquiries that are part of a voluntary employee health program. A wellness program qualifies as an “employee health program” when it meets the following criteria:

• The program is reasonably designed to promote health or prevent disease.
• The program has a reasonable chance of promoting health or preventing disease.
• The program is not overly burdensome, a subterfuge for violating the ADA, or highly suspect in the method chosen to promote health or prevent disease.
• The employer must provide notice to employees that is written and understandable, describes the medical information to be obtained and the specific purposes for which the information will be used, and provides information on disclosure of the information and on protections against improper disclosure.

The NPRM further clarifies what characteristics qualify a program as “voluntary”:

• An employer cannot require employees to participate in the program.
• An employer cannot deny access to health coverage or limit coverage for non-participation.
• An employer cannot take any other adverse action against employees for non-participation or failure to achieve certain health outcomes.

The NPRM also sets a limit on the amount that an employer may incentivize employee participation in a wellness program. The proposed rule would limit incentives – either as a reward for participation or penalty for non-participation – to 30% of the total cost of employee-only coverage. The total cost includes both the employer and employee’s combined cost of coverage. Presumably, the EEOC viewed incentives greater than 30% of the total cost of employee-only coverage as coercive and not voluntary.

Finally, the NPRM adds a subsection to the ADA’s existing confidentiality requirements. The new provisions state that an employer may only receive medical information collected through the wellness program if it is in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as necessary to implement the plan or as otherwise permitted under the current regulations.

As of now, the EEOC is welcoming comments from the public on the proposed changes until June 19, 2015. After the close of the comment period, the EEOC may revise the proposed changes before submitting them to the Office of Management and Budget to be published in the Federal Register. Employers may want to review the NRPM as a preview of future formalized changes to the guidelines and regulations. Employers should also keep in mind that a number of other laws affect the implementation of wellness programs and that employers do not have carte blanche to establish incentives or penalties as part of existing wellness programs.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about the legal implications of wellness programs or the EEOC’s proposed changes to the ADA’s regulations, please contact Patrick J. Hoban | pjh@zrlaw.com | 216.696.4441

Supreme Court Decision Cracks Open Door for Judicial Review of EEOC Conciliation Efforts

By David R. Vance*

In a decision issued on April 29, 2015, Mach Mining LLC v. Equal Employment Opportunity Commission, the Supreme Court of the United States held that the Equal Employment Opportunity Commission’s (“EEOC”) conciliation efforts are subject to judicial review, albeit within a narrow scope. Prior to this decision, the circuit courts were split on whether the statute requiring the EEOC to pursue conciliation allowed for judicial review of the EEOC’s efforts.

Title VII requires the EEOC to follow certain procedures when investigating a complaint made against an employer. If the EEOC finds reasonable cause after its investigation of an employer, it must then attempt “to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. 2000e-5(b). If the EEOC decides the conciliation efforts (which are confidential) failed, then the EEOC may sue the employer.

In the subject case, the EEOC investigated a charge of discrimination in which a female job applicant at Mach Mining alleged that the company refused to hire her as a miner because of her gender. After conducting its investigation, the EEOC sent a letter to Mach Mining informing the company that it had found reasonable cause to believe discrimination occurred and would be in touch soon to begin the conciliation process. When the EEOC sued the mining company a year later, it asserted that all conditions precedent to filing the lawsuit had been met, including the condition that the EEOC conciliate the matter. The mining company’s answer, however, contested this assertion, stating that the EEOC had not made good faith efforts to conciliate. The district court agreed with Mach Mining that the EEOC failed to meet this required condition precedent to filing suit. The Seventh Circuit Court of Appeals subsequently reversed the district court’s decision based on the premise that the EEOC’s conciliation efforts are not subject to judicial review. The Supreme Court heard the case on appeal from the Seventh Circuit.

The Supreme Court addressed the question of whether the EEOC’s attempts to conciliate are subject to judicial review, and if so, to what extent. The Supreme Court found that by definition, the language of Title VII requiring the EEOC to attempt settlement through “conference, conciliation, and persuasion” sets some minimal standards of communication between the EEOC and the employer. To wit, the Supreme Court determined that the EEOC must (1) inform the employer of the nature of the claim (including the employer’s allegedly discriminatory conduct and the person or class harmed by the conduct), and (2) must engage the employer in some discussion so as to give the employer an opportunity to discuss the matter and attempt to reach a resolution.

The Supreme Court also addressed the scope of the review, which tracks the requirements of the statute. The scope of judicial review extends to an inquiry as to (1) whether the EEOC properly informed the employer of the nature of the claim, and (2) whether it gave the employer an opportunity to discuss and rectify the alleged discriminatory practice. In practice, a sworn affidavit from the EEOC attesting to the fact that it met the statute’s requirements and failed to reach a resolution at conciliation should suffice in the absence of evidence to the contrary. If an employer also submits a sworn affidavit based on credible evidence stating that the EEOC failed to meet its duty to conciliate, then a court may engage in fact finding to make a determination. If the court finds that the EEOC did indeed fail to meet its obligations, then it may order the EEOC to conciliate.

Of course, this decision still allows the EEOC broad discretion in both the aggressiveness of its efforts to conciliate and in determining whether a proposed settlement with the employer is acceptable. The Supreme Court pointed out in its decision that Title VII’s language provides the EEOC with broad leeway and flexibility to choose its means and strategy relative to conciliation. The Supreme Court provided only a narrow scope of judicial review to determine whether the EEOC met Title VII’s minimum conciliation requirements.

Despite the minimal requirements of the EEOC’s conciliation efforts and the relatively toothless remediation in the event that the EEOC fails to meet those standards, this decision provides employers with some additional leverage in engaging in conciliation or responding to a suit filed by the EEOC. Employers should keep these conciliation requirements in mind when working with the EEOC.

*David R. Vance, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about the EEOC’s practices, please contact: David R. Vance | drv@zrlaw.com | 216.696.4441