Federal Employment Law Update – August 2016

Federal

Fair Pay and Safe Workplaces Final Rule

On August 25, 2016, the U.S. Department of Labor (DOL) and the Federal Acquisition Regulatory Council (FAR Council) issued a final rule and guidance implementing Executive Order 13673, generally known as the Fair Pay and Safe Workplaces Executive Order. Executive Order 13673 was signed by President Obama on July 31, 2014, to require prospective federal contractors to disclose labor law violations and give agencies guidance on how to consider labor violations when awarding federal contracts.

With the new rule goes into effect, prospective contractors will be required to disclose violations of 14 basic workplace protections from the previous three years — including those addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights protections. The final rule will make sure that federal agencies have the information they need to determine which contractors are meeting their responsibilities to workers.

In addition to setting up a process to effectively consider labor law violations, the order requires that contractors’ employees are given the necessary information each pay period to verify the accuracy of their paycheck. It also ensures that workers who may have been sexually assaulted or had their civil rights violated get their day in court, putting an end to mandatory pre-dispute arbitration agreements covering these claims at large federal contractors.

Implementation of the final rule will be phased in as follows:

  • Week of September 12, 2016: Pre-assessment begins, through which current or prospective contractors may come to the DOL for a voluntary assessment of their labor compliance history, in anticipation of bids on future contracts but independent of any specific acquisition.
  • October 25, 2016: The final rule goes into effect. Mandatory disclosure and assessment of labor law compliance begins for all prime contractors under consideration for contracts with a total value greater than or equal to $50 million. The reporting disclosure period is initially limited to one year and will gradually increase to three years by October 25, 2018.
  • January 1, 2017: The paycheck transparency clause takes effect, requiring contractors to provide wage statements and notice of any independent contractor relationship to their covered workers.
  • April 25, 2017: The total contract value threshold for prime contracts requiring disclosure and assessment of labor law compliance is reduced to $500,000.
  • October 25, 2017: Mandatory assessment begins for all subcontractors under consideration for subcontracts with a total value greater than or equal to $500,000.

Read the final rule
Read the guidance
Read Fair Pay and Safe Workplaces Executive Order Fact Sheet
Visit the Fair Pay and Safe Workplaces webpage

OSHA Issues Interim Guidance on Zika Virus

The U.S. Occupational Safety and Health Administration (OSHA) has released Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus. The guidance is not a standard or regulation, and creates no new legal obligations for employers. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace. The Occupational Safety and Health Act requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the act’s General Duty Clause, section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

The guidance includes the following topics:

  • An introduction to the Zika virus.
  • How the Zika virus affects humans.
  • Methods for controlling and preventing the spread of the Zika virus.
  • How to handle employees with suspected or confirmed Zika.
  • Precautions to take when traveling to Zika-affected areas.
  • Additional resources.

View the Guidance

DOJ Issues Final Rule on ADAAA

On August 11, 2016, the Department of Justice issued a final rule revising regulations under Title II (state and local governments) and Title III (public accommodations and commercial facilities) of the Americans with Disabilities Act (ADA). The final rule implements the requirements of the ADA Amendments Act of 2008 (ADAAA). The final rule goes into effect on October 11, 2016.

Congress passed the ADAAA in response to several Supreme Court decisions that narrowly interpreted the ADA’s definition of disability, leading ultimately to the exclusion from coverage of individuals with cancer, diabetes, epilepsy, attention deficit hyperactivity disorder, learning disabilities, and other disabilities. The ADAAA made a number of significant changes to the meaning and interpretation of the ADA definition of “disability” to ensure that the term would be broadly construed and applied without extensive analysis so that all individuals with disabilities could receive the law’s protections.

Consistent with the ADAAA, the final rule establishes the following:

  • The definition of “disability” should be interpreted broadly. The question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.
  • Major life activities now include the operation of major bodily functions, such as functions of the neurological, digestive, or respiratory systems.
  • Due to uncertainty about the meaning of “physical and mental impairments,” the term is now illustrated with the additional examples of dyslexia and attention-deficit/hyperactivity disorder (ADHD).
  • Specific rules of construction apply when determining whether an individual has a disability.
  • It should be easier for individuals to establish coverage under the “regarded as” prong of the definition of “disability.” The emphasis should be on how a person has been treated because of an actual or perceived physical or mental impairment (that is not transitory and minor), rather than on what a covered entity may have believed about the nature or severity of the person’s impairment.
  • Individuals covered under the “regarded as” prong are not entitled to reasonable modifications.

Read the Final Rule

HHS Issues New HIPAA Guidance Regarding Ransomware

On July 11, 2016, the U.S. Department of Health and Human Services (HHS) issued guidance under the Health Insurance Portability and Accountability Act (HIPAA) on what covered entities and business associates can do to prevent and recover from ransomware attacks. The new guidance reinforces activities required by HIPAA that can help organizations prevent, detect, contain, and respond to threats, including:

  • Conducting a risk analysis to identify threats and vulnerabilities to electronic protected health information (ePHI) and establishing a plan to mitigate or remediate those identified risks;
  • Implementing procedures to safeguard against malicious software;
  • Training authorized users on detecting malicious software and reporting such detections;
  • Limiting access to ePHI to only those persons or software programs requiring access; and
  • Maintaining an overall contingency plan that includes disaster recovery, emergency operations, frequent data backups, and test restorations.

Read the Ransomware and HIPAA Fact Sheet