Foley & Lardner Labor and Employment Law Weekly Update (Week of August 1, 2011)

Baby, It's Hot Outside! OSHA Undertakes Campaign to Prevent Heat-Related Illness in the Workplace
By Mark J. Neuberger

Much of the country has been sweltering under record high temperatures in what may yet develop into the hottest summer on record. Maintaining normal operations and productivity during record heat can pose a number of management challenges. OSHA has no specific standards or regulations concerning heat-related illness, but every employer is obligated by the General Duty Clause (http://tinyurl.com/5uvh67) to furnish to every employee with a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In addition, many state labor departments have regulations that may apply to your individual workplaces. According to OSHA, heat stroke killed more than 30 workers last year.

Despite the lack of OSHA standards governing hot weather working conditions, the summer of 2011 has not escaped the federal government's attention. OSHA has produced a new subsection of its Web site entitled Water. Rest. Shade. (http://tinyurl.com/3bqo442) devoted to educating employees and workers on the peril of and preventive measures for heat-related illness. The page also provides a number of useful informational guides and training tools (http://tinyurl.com/3f5a42u).

The issues associated with heat-related illness are not limited to those who work outdoors. Any employee who is subjected to hot and humid working conditions is at risk of suffering heat-related illness. Employees who, for other reasons, must wear bulky protective clothing and equipment face greater risk as do employees with underlying health conditions.

The warning signs of heat-related illness are not always obvious. They include:

  • Increased irritability or confusion
  • Headache, dizziness, or fainting
  • In some instances, actually stopping sweating

Like most workplace safety issues, preventive steps are recommended to decrease the risk of injury or illness. The first thing employers should do is monitor upcoming weather trends and anticipate when the next heat wave will hit. The National Oceanic and Atmospheric Administration has its own Web site called Heat Watch (http://tinyurl.com/4mk6yf) with an informational heat index and associated heat watches and warnings. To prepare for unusually high heat conditions management should:

  • Train supervisors to recognize the warning signs of heat-related illness
  • Provide training to supervisors and employees on the following preventive steps:
    • Provide lots of cool water in close proximity to the work area
    • Instruct employees to drink at lease one pint of water per hour
    • Encourage employees to take more frequent breaks away from direct sun and direct heat sources
    • Routinely check workers who are at risk
    • Avoid caffeine and alcohol
    • When possible, provide fans and misting when air conditioning is not available

Screening Out "Unemployed" Applicants Could Be Costly
By Scott P. Inciardi

National unemployment statistics remain dire. The Labor Department's most recent report (http://tinyurl.com/dje47) reveals that unemployment has risen for each of the last four months, and now stands at 9.2 percent. More than 14 million Americans are officially unemployed - and this number does not even include those who have given up looking for work. In this environment, a number of employers is using recruitment and hiring policies that screen out the unemployed, simply because they are not currently working. Several months ago, the EEOC concluded (http://tinyurl.com/4x2wq5x) that such practices may violate Title VII of the Civil Rights Act, and the EEOC chair questioned whether such practices are compliant with federal law outlawing discrimination.

The basis of such a claim of discrimination would be the following: As severe as the unemployment figures are, they are disproportionately higher for a number of protected classes. Thus, some commentators have observed that women, and particularly older women, have suffered more severely in the current recession and form a disproportionately large sector of the unemployed. Others have noted that the practice of excluding unemployed applicants may have a disproportionate effect on certain racial and ethnic minority members of the community who also have experienced loss of employment in far greater numbers than national averages. Accordingly, refusing to consider unemployed applicants could have a discriminatory "disparate impact" on those protected groups.

Mindful of this situation, two members of Congress have introduced the Fair Employment Opportunity Act of 2011 (http://tinyurl.com/3quylum) which, if passed, would prohibit employers and employment agencies from refusing to consider job applicants solely because they were unemployed. Whether or not federal legislators approve such new legislation, some states are already taking action to prohibit the use of such criteria. For example, New Jersey recently passed legislation that makes it illegal for employers and staffing firms to publish job postings that exclude the unemployed from consideration. Similar legislation (http://tinyurl.com/3vejdvm) is pending in New York.

Whether the federal bill will pass is open to question in the current anti-regulatory political environment in Washington. However, this legislative activity, allied with state legislation and an increasing focus on the legality of excluding applicants based on their employment status, emphasizes that this issue is gaining greater attention; and employers would be well advised to review their hiring policies and determine what risks they may be taking by screening out applicants simply because they are not currently employed.

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