Laborpedia

An encyclopedia of labor law, health, and OSHA-inspired safety terms with practical explanations and applications for the workplace - search here for concise and convenient answers to laws, concepts and regulations. (In Those cases where the institutions, laws, and regulations have common acronyms 0 like COBRA and DOL - the listings use the acronyms for titles.)

We encourage reader and labor law/OSHA community involvement. If you have terms you would like explained, or if you'd like to contribute a term and explanation, please contact us.

Patient Protection and Affordable Care Act

The Patient Protection and Affordable Care Act (PPACA), signed into law in March 2010 and taking full effect on Jan. 1, 2014 (with some provisions delayed until 2015), has since come to be known simply as the Affordable Care Act. Please visit that section for further details.

FCRA

 

Breach Rule

As part of the American Recovery and Reinvestment Act (ARRA) of 2009, a law entitled Health Information Technology for Economic and Clinical Health (HITECH) sought to strengthen the privacy and security provisions of 1996's Health Insurance Portability and Accountability Act (HIPAA).

The Department of Health and Human Services (HHS) then issued specific regulations concerning breaches of personal health information (PHI) by covered entities and their business associations who work with, retain, store and transmit health information.

The breach rule requires all those handling "unsecured" PHI to notify the affected individuals when their information has been breached, and in cases involving 500 or more individuals, to notify HHS and its Office of Civil Rights (OCR) as well as the media. For smaller breaches, reporting to HHS can be done on an annual basis.

The key word here is "unsecured," which HHS defined as meaning either the information has been so encrypted as to be undeciperable or the information has been destroyed.

H1N1 Swine Flu

Starting in early 2009, a new flu bug, popularly referred to as the swine flu, started spreading, first in Mexico and then throughout the world. Health officials later labeled this the H1N1 influenza strain. The H1N1 virus represents a morphing of human flu, avian flu and swine flu into one potent variety that can spread from human to human. So far, it’s been contained mostly successfully, but this was true in 1918 as well when an early flu came and went with little fanfare, only to reappear later in the year with a vengeance, killing 40 million people worldwide.

The 1918 flu epidemic was spread in part by troop movements during World War II. In more recent times, both AIDS and SARS hopped aboard passenger jets and criss-crossed the globe. In Colonial times, Europeans brought smallpox to the Americas and returned home bearing and spreading syphilis. And of course, what English cosmologist Stephen Hawking calls mankind’s sole God-like creation—the modern computer virus—spreads invisibly through cyberspace. (Hawking: “I think computer viruses should count as life. I think it says something about human nature that the only form of life we have created so far is purely destructive. We’ve created life in our own image.”) Our latest weapon of viral mass destruction and its journey around the globe also owe their success to airline travel, but also to free trade and the rapid movement of goods and foods—and their production—around the globe.

To get technical, the current virus is among those in the Influenza A classification, the deadliest type, meaning it is capable of producing a pandemic. Thus you will often see the swine flu listed as A/H1N1. The H and N both stand for surface proteins comprising the flu strand, in this case hemagglutinin (H) and neurmindase (N). There are 16 known H proteins and 9 N proteins; the virus exists as a combination of these two proteins. And here’s the scary part—the 1918 Spanish flu pandemic was also an H1N1 virus, as is the current swine flu virus. That 90-year-old pandemic, remember, claimed 40 million lives worldwide, and this was before air travel and today’s free-flowing worldwide trade. However, on the plus side, both medicine and disease control and prevention have come a long ways since then. We are certainly much better prepared today to forecast, set up defenses, and then contain and control pandemics

What to do in the workplace to prevent the spread of the swine flu?

Personnel Concepts has developed a well-researched and non-technical guide called the Pandemic Flu Workplace Preparedness Kit. Get yours today.

Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 is a national law that protects qualified individuals from discrimination based on their disability. The nondiscrimination requirements of the law apply to employers and organizations that receive financial assistance from any Federal department or agency, including the U.S. Department of Health and Human Services (DHHS). These organizations and employers include many hospitals, nursing homes, mental health centers and human service programs. Section 504 forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services.

Section 504 protects qualified individuals with disabilities. Under this law, individuals with disabilities are defined as persons with a physical or mental impairment which substantially limits one or more major life activities. People who have a history of, or who are regarded as having a physical or mental impairment that substantially limits one or more major life activities, are also covered. Major life activities include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning. Some examples of impairments which may substantially limit major life activities, even with the help of medication or aids/devices, are: AIDS, alcoholism, blindness or visual impairment, cancer, deafness or hearing impairment, diabetes, drug addiction, heart disease, and mental illness.

In addition to meeting the above definition, for purposes of receiving services, education or training, qualified individuals with disabilities are persons who meet normal and essential eligibility requirements. For purposes of employment, qualified individuals with disabilities are persons who, with reasonable accommodation, can perform the essential functions of the job for which they have applied or have been hired to perform. (Complaints alleging employment discrimination on the basis of disability against a single individual will be referred to the U. S. Equal Employment Opportunity Commission for processing.) Reasonable accommodation means an employer is required to take reasonable steps to accommodate your disability unless it would cause the employer undue hardship.

Civil Rights Act of 1991

The Civil Rights Act of 1991 sought to end confusion arising from differing provisions of the Civil Rights Act of 1866, also called Section 1981, and the Civil Rights Act of 1964. The former barred disrimination based solely on race and color, while the latter added the protected categories of sex, religion and national origin. More significantly, Section 1981 allowed for jury trials (though the act went unenforced for a century), and the 1964 Civil Rights Act allowed only for court trials since the authors assumed Southern juries would be biased. Finally, the earlier law provided for relief only in the form of back pay, reinstatement and injunctions against further misconduct but not for attorneys' fees.

Thus individuals seeking legal action for different types of discrimination were subject to different rules. Several court cases sought to reconcile Section 1981 and the Civil Rights Act of 1964, but these decisions in turn established various legal hurdles based on language in Section 1981 and also shifted the burden of proof to the employees (plaintiffs).

The final compromise version of the Civil Rights Act of 1991 ended up allowing for jury trials while leaving employees with most of the burden of proof. Basically, the act allows employers to show that their alleged discriminatory employment decision would still have been made in the absence of any discriminatory intent. This then becomes a defense against backpay, reinstatment and other remedies but not against overall liability, unless the plaintiff can show an actual negative impact in wages or other outcomes. In short, employers could get off most of the hook by showing their decision was not based solely on discriminatory intent, but they would still be liable for paying all attorneys' fees, fixing the loophole in Section 1981.

Vacation Pay

Vacation pay is a typical employment benefit granted to full-time employees who have completed a probationary period and have served the employer for a specific period of time. It is usually offered as an accrued benefit. Vacation pay also carries advantages to the employer because paid time off from work improves productivity and morale.

There are no federal laws that govern the accrual of vacation pay, nor is there any federal law that mandates vacation pay for employees. Federal statutes leave the matter of vacations up to the employer and the employee. However, many states have passed specific laws governing administration of fringe benefits including vacation pay.

Violence in the Workplace

Violence in the workplace is a leading cause of occupational injuries and fatalities among late night retail businesses, social services occupations, tax drivers, and other types of businesses that deal directly with the public. While employers and employees in these industries understand that violence is an occupational hazard, many employers in general industry establishments fail to address the possibility of a violent incident's occurring in the workplace.

The Federal Occupational Safety and Health Administration (Fed-OSHA or just OSHA) has provided outreach to industries suffering the highest rate of injuries and fatalities due to workplace violence. While no OSHA standard currently addresses workplace violence specifically, the General Duty Clause of the OSH Act requires employers to provide a "form of employment and place of employment free from recognized hazards." Since violence is a recognized hazard, employers must prevent its occurrence in the workplace.

Employers have found that one of the most effective means of ensuring the prevention of violence is by adopting a "zero tolerance" policy, which treats each act of violence promptly with discripline or termination.

Warn

The Worker Adjustment and Retraining Notification Act (WARN) protects workers, their families, and communities by requiring employers to provide advance notification of plant closings and mass layoffs. Advance notice allows workers and their families time to adjust to the loss of their jobs, gives them ample time to seek and obtain other jobs, and allows them to seek training or retraining to help them compete in the job market.

The WARN Act covers employers with 100 or more employees within 75 on payroll, not counting those who have worked less than six months in the past year and those who work an average of less than 20 hours a week. The law is enforced by the U.S. Department of Labor's Employment and Training Administration (ETA).

A covered plant closing occurs when a facilitiy or operating unit is shut down for more than six months, or when 50 or more employees lose their jobs during any 30-day period at a single site of employment. A covered mass layoff occurs when a layoff of six months or longer affects either 500 or more workers or at least 33 percent of the workforce when the layoff affects between 50 and 499 workers. The number of affected workers is the total number laid off during a 30-day period (in some cases, a 90-day period).

A new act entitled FOREWARN has been introduced in Congress to reduce the workforce threshold to 75 employees and raise the notification period to 90 days. FOREWARN would also entitle workers to double past wages if the employer fails to give advance notice (WARN allows just standard wages).

Workers' Compensation

Workers' compensation laws are designed to provide fixed monetary awards to employees who are injured or disabled on the job, thereby representing a compromise between employer and employee that eliminates the need for litigation. Such laws are regulated and enforced at the state level, though there are federal workers' compensation laws that apply to federal workers, maritime workers, and mine workers.

Every state (with the exception of Texas and New Jersey) requires employers to obtain workers' compensation coverage. Most states allow employers to self-insure. Failure to obtain or establish coerage can result in heavy penalties, from monetary fines to imprisonment. State workers' comp laws impose varying limits and restrictions on filing procedures, filing periods, cash benefits, settlements, and even the types of injuries deemed "compensable."

Employers may comply with their state's insurance coverage requirement via a variety of coverage options, including commercial insurance, self-insurance, state funds, residual insurance, and other insurance alternatives available in their state.

Youth Minimum Wage

The 1996 amendments to the Fair Labor Standards Act (FLSA) included a provision that allows FLSA-covered employers to pay a special wage rate to workers under 20 years of age for the first 90 consecutive days of employment. The special wage rate is lower than the federal minimum wage.

Section 6(g) of the FLSA permits covered employers to pay employees under the age of 20 a special minimum wage rate of $4.25 per hour for the first 90 consecutive days of employment, or until the employee turns 20 years of age, whichever occurs first. The 90 days are calendar days, not work days. When the 90 days expire or the employee turns 20, the federal minimum wage then applies.

In states that have legislated higher youth minimum wages, the state's rate will apply, not the federal $4.25 rate. The same applies if the state minimum wage is higher than the federal rate.

Recordkeeping requirements

More than 20 employment laws contain provisions that require employers to create, maintain, and retain certain personnel records. The agencies that enforce employment laws are empowered to request and review your personnel records during an investigation or audit.

Fines for non-compliance with record-keeping requirements can range up to $1,100 per employee. Additionally, failure to meet record-keeping requirements can prove costly in an employee lawsuit, as personnel records are commonly used as part of an employer's defense in a wrongful discharge or discrimination lawsuit.

Some of the major laws requiring specific recordkeeping are the following: Age Discrimination in Employment Act (ADEA); Americans With Disabilities Act (ADA); Employee Polygraph Protection Act (EPPA); Equal Pay Act of 1963 (EPA); Fair Labor Standards Act (FLSA); Family and Medical Leave Act (FMLA); Immigration Reform and Control Act (IRCA); Internal Revenue Code; Occupational Safety and Health Act (OSH Act); OSHA's Bloodborne Pathogens Standard; and Title VII of the Civil Rights Act. There are also state laws and regulations as well as federal labor and OSHA regulations that require paperwork.

New Hire Reporting

A federal law called The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 directed all states to implement regulations requiring employers to report new hires to a state directory within 20 days of starting the job. The purpose of the new hire reporting requirement is to reduce any delay in establishing immediately wage withholding for parents who are delinquent in their child support payments.

Though many states publish their own new hire reporting forms, the employee's IRS W-4 form is an acceptable method of reporting new hires to state directories. Lately, electronic reporting is being done as well using the Internet.

Occupational Noise Exposure and Hearing Loss

OSHA's Occupational Noise Exposure standard (29 CFR 1910.95) mandates that, if employees are exposed to an eight-hour, time-weighted average of 85 decibels or greater, employers must implement an effective hearing conservation program.

The ruel generally pertains to businesses with workspaces that maintain consistent noise levels from machinery, vehicles or equipment that exceed the 85-db threshold.

In these situations, the employer must ensure that each employee is informed of the following: the effects of noise on hearing; the purpose of hearing protectors; the advantages, disadvantages, and attenuation of various types, along with instructions on selection, fitting, use, and care; the purpose of audiometric testing; and an explanation of the teset procedures.

Buesinesses are required to post OSHA's Occupational Noise Exposure standard (29 CFR 1910.95) as well as implement a hearing conservation program.

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