Cal/OSHA Approves Hotel Housekeeping Employee Injury Regulation

Protecting Against Employee Injury

Following years of evaluation, on March 9, 2018, the Cal/OSHA Standards Board approved a standard on “Hotel Housekeeping Musculoskeletal Injury Prevention.” The Office of Administrative Law approved the new regulation that will require hotels and other lodging establishments (i.e. resort, bed and breakfast) to implement new requirements to protect employees who perform housekeeping tasks from any “musculoskeletal injury.”

Background

The mission of the Division of Occupational Safety and Health, better known as Cal/OSHA, is to protect and improve the health and safety of working men and women in California and the safety of passengers riding on elevators, amusement rides, and tramways. Cal/OSHA works to achieve its mission by setting and enforcing standards; providing outreach, education, and assistance; and issuing permits, licenses, and certifications.

To provide proper guidance to California employers, Cal/OSHA included several key definitions in its most recent regulation:

  • Musculoskeletal Injury is defined as “acute injury or cumulative trauma of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone, spinal disc or blood vessel.”
  • Lodging Establishments is defined as establishments that contain sleeping room accommodations that are rented or otherwise provided to the public, such as hotels, motels, resorts, and bed and breakfast inns.
  • Musculoskeletal Injury Prevention Program, or MIPP, is a written program that addresses hazards specific to housekeeping. The standard specifies that the MIPP may be incorporated into an existing injury and illness prevention program (IIPP) or maintained as a separate program, and must be readily accessible each work shift to employees (including electronic access).

Under the new rules California hotel and other lodging establishments industry employers will be required to update their written Injury and Illness Prevention Plan (IIPP) to incorporate the following:

  1. Must have a Musculoskeletal Injury Prevention Program (MIPP) in addition to the IIPP. The MIPP may be a standalone policy or incorporated into the IIPP.
  2. The MIPP must be “readily accessible” to employees to review during their work shift. An electronic copy is sufficient if there are “no barriers to employee access” as a result. No such requirement exists for IIPPs.
  3. By October 1, 2018, effected employers must complete an initial worksite evaluation to identify and address potential injury risks to housekeepers. This worksite evaluation as well as subsequent evaluations (at least annually) “shall include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.”
  4. The MIPP’s procedures for investigating musculoskeletal injuries to a housekeeper must allow for input from the housekeeper’s union representative as to whether any measures, procedures, or tools would have prevented the injury.
  5. Records of worksite evaluations and other records required by the MIPP must be made available to a Cal/OSHA inspector within 72 hours of a request. There is no 72-hour deadline under the IIPP regulation.

Important Takeaways for California Employers
The final regulation becomes effective July 1, 2018. However, California hotel and other lodging establishments industry employers now have until October 1, 2018, to roll-out their Musculoskeletal Injury Prevention Programs. These MIPPs must be compliant according to Cal/OSHA inspectors, including the ability to provide records of worksite evaluations and other records required by the MIPP to Cal/OSHA within 72 hours of a request.

employee injury

Questions about California Employment Law

At Kingsley & Kingsley, our attorneys work in a variety of practice areas throughout the state of California, with a central focus on helping the injured or mistreated individual who has suffered abuse at the hands of an employer, insurance company, or corporate entity. Our experienced trial lawyers work to level the playing field and fight for the rights of our clients, regardless of the size and power of the opposition. Should you have questions about California’s labor laws, don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley.

Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email here.

Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

disability discrimination

Cases Illustrating Expanded Protections Against Discrimination

Disability Discrimination, Retaliation and Sexual Harassment 

Protecting employees from workplace discrimination and retaliation continue to be a primary focus for both California courts and the legislature. The following case recaps provide a glimpse into some of the decisions regarding discrimination and retaliation. 

Discrimination and Retaliation

  • Aviles-Rodrigues v. Los Angeles Community College District – The Second Appellate District reversed previous judgment and held that a professor denied tenure has one year from the last date of his employment, and not from the prior notification of denial of tenure, to file a complaint with the Department of Fair Employment and Housing (DFEH). This case involved a review committee’s denial of tenure for a professor, who claimed that the denial was based upon his race.
  • Husman v. Toyota Motor Credit Corp. – Joseph Husman alleged sexual orientation discrimination based on the “perception he was too gay” and retaliation for alleged criticisms he made concerning Toyota’s commitment to diversity. A trial court sided with Toyota on both retaliatory and discrimination claims, but an appellate court reversed the latter discrimination decision. While Toyota had non-discriminatory reasons for the plaintiff’s termination, the plaintiff provided evidence that a manager made negative comments regarding his sexuality and ridiculed him for essentially being “too gay.” Based on that, the court determined that discrimination could have been a substantial motivating factor in the employee’s discharge, and sent the case back to the lower court for a trial on the merits.
  • M.F. v. Pacific Pearl Hotel Management. LLC – This case involved an engineering manager’s failure to remove an intoxicated trespasser from the Pacific Pearl Hotel and to inform staff of the trespasser’s presence. The lack of communication and failure to check on all housekeeping staff led to the assault and rape of a housekeeper by a drunk non-employee trespasser that the employer knew or should have known was on the premises and had aggressively propositioned other employees prior to the attack. The appellate court reversed and remanded the superior court’s dismissal of a claim under the California Fair Employment and Housing Act (FEHA), and confirmed that FEHA allows an employee to sue an employer for sexual harassment at the hands of nonemployees.

Medical Leave and Reasonable Accommodations 

A couple of cases exemplify appellate courts opinions regarding disability discrimination and medical leave for private and public employees.
Bareno v. San Diego Community College District – The California Court of Appeal issued a decision in favor of an employee of San Diego Miramar College who was released for “job abandonment” while out on medical leave. The court reversed the trial court’s judgment in favor of the College, holding a reasonable fact-finder could conclude the College retaliated against the employee for taking medical leave protected under the California Family Rights Act (“CFRA”). The result of this case issued a reminder for employers to check whether an employee is off work for a medical reason before terminating on the basis of job abandonment. 

disability discrimination

Featherstone v. Southern California Permanente Medical Group – This case determined that an employer has no obligation to provide reasonable accommodations if it has no knowledge of an employee’s disability. Plaintiff Ruth Featherstone was the employee who resigned, yet later withdrew her resignation, alleging her severe sinusitis, surgery and medication to treat the illness made her act erratically. The California Court of Appeal for the Second District held that refusing to allow an employee to rescind her voluntary resignation does not constitute an adverse employment action.

Conclusion

The preceding cases highlight the intricacies California employers must face when dealing with employee disabilities, as well as potential discrimination and sexual harassment. Should you have questions about ADA, disability discrimination, or sexual harassment don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

Return to Work Policy Costs American Airlines $9.8M

American Airlines and Envoy Air Settle EEOC Disability Suit about Return to Work Policyamerican airlines eeoc return to work policy

American Airlines’ and Enoy Air’s return to work policy has resulted in a $9.8 million settlement with the Equal Employment Opportunity Commission (EEOC). According to the agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee, the airline’s policy violated the Americans with Disabilities Act (ADA) because it meant that employees were not allowed to return to work until they had no disability-related restrictions on their job duties. In short, the EEOC challenged the airline’s policy of requiring workers to be at “100 percent” in order to return to work. 

Allegations of Disability Discrimination

Employees of American Airlines and its largest regional affiliate, Envoy Air filed charges of discrimination with the EEOC alleging violations of the ADA. The employees filing complaints had disabilities such as back and knee injuries, cancer, lupus and asthma. The complaints suggested the employer refused to provide accommodations such as intermittent leave or a stool behind the ticket counter for a worker with a standing restriction, according to the EEOC.  The workers ultimately alleged that the airlines had a “100 percent” return to work policy that required employees to be able to work without any restrictions.

After investigating, the EEOC filed suit asserting that since at least Jan. 1, 2009, American Airlines engaged in a practice of violating the statute by refusing to accommodate employees with disabilities, terminating employees with disabilities and failing to rehire employees. The policy required that employees who are no longer able to do their job without reasonable accommodation find other jobs, apply for other jobs or compete for other American Airlines jobs. The policy did not require consideration of job reassignment as a reasonable accommodation.  

According to the EEOC’s complaint, American 1) did not provide intermittent leave as an accommodation, 2) refused to provide a stool behind the ticket counter to accommodate an employee with a standing restriction, 3) terminated several of the charging parties or placed them on unpaid leave, and 4) told other disabled employees they could not return to work until they had no restrictions related to their injuries and/or disabilities.

American Enters a Consent Decree

American Airlines denied all of the allegations and maintained that they provide equal employment opportunities for all workers. Even with this stance, American entered a consent decree to settle the charges. The consent decree contains the following provisions:

  1.  The EEOC will hold an unsecured claim in American Airlines’ Fourth Amended Joint Chapter 11 Plan in the amount of $9.8 million. The ultimate dollar value of the settlement will depend upon the trading price of the airline’s stock, the parties acknowledged, with the decree fully enforceable no matter the trading price;
  2. American took responsibility for administration costs up to $150,000;
  3. American and Envoy will conduct additional ADA training for all employees, with extra time allotted for human resources workers and ADA coordinators, and a newly designated position will have responsibility for overseeing American’s compliance with the statute and the consent decree;
  4. American and Envoy will refrain from taking part in any employment practices that discriminate or retaliate on the basis of disability and will engage in the interactive process with employees who request a reasonable accommodation;
  5. The airlines will end the challenged return to work policy accommodation and remove references to the litigation from the charging parties’ personnel files; and 
  6. American will provide equitable relief to the complainants.

EEOC Deputy General Counsel James L. Lee said, “We are pleased the parties were able to resolve this important case without resorting to prolonged and expensive litigation, and we are proud of the Commission’s long record of protecting people with disabilities from workplace discrimination.”

Click here to read the entire consent decree filed on November 3, 2017 in Equal Employment Opportunity Commission v. American Airlines, Inc.

California Employment Lawyers

Given the outcome of this investigation, employers should take heed of the EEOC’s position regarding 100% return to work policies. Subsequently, employers should be extremely cautious about requiring employees to return to work without restrictions when returning from medical leaves of absence. Should you have questions about the ADA, or employees having the ability to return to work with or without restrictions, don’t hesitate to contact the experienced California employment lawyers at Kingsley & Kingsley. To discuss these laws, or a potential claim on your behalf, feel free to call us toll-free at (888) 500-8469 or contact Kingsley & Kingsley via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

 

ups disability discrimination

UPS Settles EEOC Disability Discrimination Suit for $2 Million

ups disability discriminationOn August 8, 2017, the U.S. Equal Employment Opportunity Commission (EEOC) issued a press release announcing the settlement of a lawsuit against United Parcel Service, Inc. (UPS). The suit alleged disability discrimination claims under the Americans with Disabilities Act (ADA) and was settled for $2 million dollars. The EEOC alleged that UPS maintained an “inflexible leave policy” by which disabled employees were automatically discharged if they were unable to return to work after exhausting the maximum 12 months of leave provided by the policy. Thus, according to the EEOC, this UPS policy essentially shut down the interactive process required by the ADA to determine whether additional reasonable accommodations were available to such persons.

Background

The EEOC suit against UPS started when the company discharged employee Trudi Momsen, after she requested leave beyond the maximum 12-month limit. Initially, Ms. Momsen took a 12-month leave of absence from work due to a diagnosis of multiple sclerosis. She then returned to work at the conclusion of that 12-month leave, but shortly after requested an additional two weeks of leave for medical reasons. Eventually, UPS terminated her for exceeding the 12-month leave policy.

EEOC Determination

The EEOC’s investigation concluded that UPS’ 12-month leave policy and its application to employees such as Ms. Momsen violated the reasonable accommodation and other provisions of the ADA. The EEOC filed suit in U.S. District Court for the Northern District of Illinois (Case No. 09-cv-5291) after first attempting to reach a pre-litigation settlement through its conciliation process. The suit involved a class of 88 current and former UPS employees whom the EEOC alleged were victims of UPS’ employment practices.  Continue reading

Ninth Circuit Finds For Plaintiff in Disability / ERISA Case

Employee Retirement Income Security Act – ERISA

On November 4, 2016, the Ninth Circuit Court of Appeals issued an opinion in Avery Armani v. Northwestern Mutual Life Insurance Company. The Ninth Circuit vacated in part the district court’s judgment in favor of the defendant in part in plaintiff’s action under the Employee Retirement Income Security Act or ERISA, challenging a denial of benefits under a long term disability insurance policy.

Background  

Avery Armani was a full-time controller for the Renaissance Insurance Agency from November 3, 2008 to May 18, 2011. In January 2011, Armani injured his back while lifting a heavy backup power supply. He was diagnosed with a lumbar sprain, muscle spasms, and sciatica. His treating chiropractor instructed him not to sit continuously without the ability to change positions.

As a Renaissance employee, Armani was insured under a group long-term disability policy issued by Northwestern Mutual. Under the plan, participants were entitled to disability benefits for the first 24 months if they were unable to perform “with reasonable continuity the material duties of [their] own occupation.” After benefits had been paid for 24 months, participants needed to establish that they were “unable to perform with reasonable continuity the material duties of any gainful occupation for which [they were] reasonably fitted by education, training, and experience.”

According to an attending physician’s statement, Armani was limited to sitting for four hours, standing for two hours, and walking for two hours during an eight-hour workday. Northwestern Mutual’s vocational case manager confirmed that Armani’s occupation was classified as sedentary. Based on a review of medical records obtained from Armani’s healthcare providers, Northwestern Mutual’s reviewing physician, Armani was capable of working in a sedentary position. Relying on the reviewing physician’s opinion, Northwestern Mutual identified three positions in addition to Armani’s own position that he could perform at a sedentary level. The company based its assessment on the U.S. Department of Labor’s Dictionary of Occupational Titles (DOT), which states that “[s]edentary work involves sitting most of the time, but may involve walking or standing for brief periods of time.”

erisa disability

Northwestern Mutual informed Armani that his claim was being closed because the records did not support a finding that he was entitled to disability benefits under either the “own occupation” or “any occupation” standards required by the plan. Armani appealed the decision.

District Court Decision

Northwestern Mutual upheld its claim decision and the district court took up Armani’s case. The district court concluded that Armani was disabled under the “own occupation” standard and awarded nine days of benefits at the end of the initial 24-month period. The district court also held that Armani failed to show by a preponderance of the evidence that he was disabled from “all occupations,” concluding that the administrative record contained “scant information regarding [Armani’s] condition during this period.”

Armani argued that he was unable to perform any occupation classified as sedentary because, by definition, sedentary work required an ability to sit for six hours. The district court rejected this argument, holding that Northwestern Mutual was not bound by this definition, as it was drawn from the Social Security context, and ERISA and Social Security are vastly different. It also held that Armani had failed to demonstrate how his disability prevented him from performing any of the sedentary occupations identified by Northwestern.

The Ninth Circuit’s Opinion

The Ninth Circuit first recognized that “the claimant has the burden of proving by a preponderance of the evidence that he was disabled under the terms of the plan.” The court also found that the evidence before the district court “plainly showed that . . . every physician and chiropractor who treated Armani determined that he could not sit for more than four hours a day.”

The Ninth Circuit then concluded that the district court had erred in rejecting Armani’s definition of “sedentary” work that was drawn from the Social Security context. The court based this conclusion in part on the fact that “other courts evaluating ERISA claims and interpreting the DOT have consistently held that an employee who cannot sit for more than four hours in an eight-hour workday cannot perform work classified as ‘sedentary.’” The court also found that “[s]ome of these courts have further noted that ‘sedentary work’ generally requires the ability to sit for at least six hours.”

Ultimately, the court concluded that the district court erred in finding that Armani had not established that he could not perform the sedentary occupations identified by Northwestern Mutual because the undisputed evidence established that Armani was unable to sit for more than four hours a day. The court also vacated the part of the district court’s judgment denying the plaintiff his long term disability benefits and remanded for further proceedings.

California Employment Lawyers

With increased scrutiny and penalties in effect for ERISA violations, California employers should take the time to conduct audits to ensure compliance with the various employment laws enforced by the DOL. Should you have questions about ERISA or disability insurance policies, don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. To discuss your situation call us toll-free at (888) 500-8469 regarding your case.

Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200 | Encino, California 91436
Phone: 888-500-8469 | Local: 818-990-8300 (Los Angeles Co.)

Apria Healthcare Group to Pay $100,000 To Settle EEOC Disability Discrimination Suit

Disability Discrimination

Apria Healthcare was charged by the U.S. Equal Employment Opportunity Commission (EEOC) for allegedly laying off a warehouse clerk after she notified them of medical restrictions.  According to the EEOC, the company will reportedly pay $100,000 to settle a lawsuit for disability discrimination.

Background  termination and disability discrimination

Apria Healthcare Inc. is a home medical provider that offers medical equipment and services in Albuquerque, New Mexico. As described in the EEOC’s, Apria violated the Americans with Disabilities Act (ADA) by firing Hilda Padilla approximately one week after she returned from medical leave to remove a 23-pound tumor. Although the company alleged the termination was due to a reduction-in-force, Padilla was not given notice of the impending layoff, while another warehouse clerk’s position was not considered for elimination. The company initiated its decision to lay off Padilla only two days after she provided notice of her medical restrictions. Padilla was then left without medical insurance or the ability to receive follow-up medical care after her surgery.

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