DOL ONLINE ENFORCEMENT DATABASE LISTS CITATIONS AND VIOLATIONS: The Department of Labor (DOL) April 7 announced the launch of the Online Enforcement Database which will provide previously unavailable data from five DOL agencies, including citations by the Occupational Safety and Health Administration (OSHA) and wage and hour violations.  DOL launched the database to comply with the December 2009 memofrom the White House encouraging transparency in government agencies.  Under this new initiative, enforcement statistics data will be available for OSHA, the Wage and Hour Division (WHD), the Employee Benefits Security Administration (EBSA), the Office of Federal Contract Compliance Programs (OFCCP) and the Mine Safety and Health Administration (MSHA). Previously, only OSHA and MSHA had their enforcement data available online. The DOL is calling this database “a work in progress” and says “new features, functionality and search criteria will be added over time.” The database is available at http://ogesdw.dol.gov/.

• OSHA will provide records of citations, penalty assessments, reasoning for specific inspections as well as descriptions of accidents resulting in injury or fatalities.
• WHD will provide information on all concluded compliance actions since fiscal year 2009. This includes any violations and the back wage amount; the number of employees due back wages; and civil money penalties assessed. The data will be updated quarterly.
• EBSA will provide enforcement data on closed cases that resulted in a penalty assessment under the Deficient Filer program, the Late Filer program and the Non-Filer program, beginning with fiscal year 2009. This data will be updated quarterly.
• The data provided by OFCCP for the enforcement database consists of completed compliance evaluations and complaint investigations, conducted by the OFCCP, since fiscal year 2004. The data will be updated monthly. 

OSHA ISSUES GUIDANCE ON SCAFFOLDING REGULATIONS: In a series of letters released between March 29 and April 5, the Occupational Safety and Health Administration (OSHA) issued interpretations of rules regulating scaffolding and personal fall protection. 

1.        In an April 5 letter, OSHA offered clarification on the performance requirements for canopy structures, debris nets and catch platforms as discussed in the scaffolding standard.  According to OSHA’s interpretation, each employee working on scaffolding must be protected from falling objects by wearing hardhats in addition to being offered protection in the form of toeboards, screens, guardrail systems, debris nets, catch platforms or canopy structures.  OSHA also stated that if the falling objects were too large or heavy to be stopped by any of the specified protective systems, those objects must be placed away from the edge and must be secured in place.

2.        OSHA also offered a descriptionof when the space between scaffold planks and uprights could be greater than 1 inch.  OSHA wrote that the space between planks can only exceed the 1 inch limit required in the standard when the employer can demonstrate that the wider space was necessary, such as when the plank needed to fit around uprights.  In addition, OSHA noted that the space between planks cannot exceed 9½ inches at any time regardless of circumstance.

3.         In other interpretations, OSHA stated that double wrap #9 gage steel wire is acceptable to guy, tie or brace a scaffold and that toeboards are required any time there is danger of objects such as tools or equipment falling off a scaffold, even if that toeboard is placed at the scaffold access point.

ABC’S ASK THE CHAPTER LAWYER:

Question:       In light of the recent amendments to the Americans with Disabilities Act, should employers revise their job descriptions in order to provide a defense against a failure to hire claim?  

Answer:          Yes. Because the amendments broadened the scope of the Act, it is now more important than ever for employers to ensure their job descriptions accurately and clearly describe the job requirements.

Background

The Americans with Disabilities Act (ADA) was significantly changed by the ADA Amendments Act of 2008 (ADAAA), effective January 2009.  Most significantly, the meaning of “disability” under the ADA was expanded in favor of broader coverage of individuals.  These changes make it easier for individuals filing lawsuits under the ADA to establish a disability and therefore, employers will likely face an increase in litigation stemming from failure to hire claims.

Basic Qualifications for the Job

            All applicants, regardless of status concerning disability, must have the basic qualifications for the job. For example, if a job description requires specific education, training, employment experience, skills, or licenses, an employer need not hire an individual who does not have the specified qualifications.

Job Testing Requirements

           If an employer uses pre-employment testing as part of the application process, the employer must accommodate disabled applicants with respect to the test. The employer must test in a manner or format that does not require the use of a disabled applicant’s impaired skill unless the test is designed to measure that skill. Thus, the job description should clearly describe the testing requirement and the purpose for the testing.   For example, if an employer desires to fill a clerical position with someone proficient in word processing, the employer need not provide an individual with a learning disability an extended period of time for completing a word-processing test where the job itself requires speed of typing.

Essential Functions of the Job

            All applicants must be able to perform the essential functions of the job with or without a reasonable accommodation. Job descriptions should include a description of the essential functions of the job. An employer may not refuse to hire an individual because the individual is unable to perform the minor functions of the job. Therefore, it is important that the employer include all essential job functions in the description.

            While applicants are not required to inform an employer that they may need an accommodation prior to being offered a job, a comprehensive job description alerts an applicant that she may need an accommodation to perform the job. Applicants are therefore more likely to discuss the accommodation at an earlier time with the employer and both the applicant and the employer will be better prepared with respect to the needed accommodation.  

If you are concerned about whether your job descriptions will provide you with a defense under the amended ADA, feel free to contact Jerry Pigsley of Harding & Shultz, ABC Chapter counsel, (402) 434-3000, jpigsley@hslegalfirm.com.