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Court Says: It’s Up to You to Stay Current on Industry-Specific Regs

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in Employment Law,HR Management,Human Resources,Leaders & Managers,Management Training

It’s tough to keep up on all the latest changes in employment law. Busy HR professionals have to handle day-to-day problems and make sure new rules and regulations make their way into that routine.

Considering that the federal government issues thousands of pages of new regulations every week, it may feel as if there is no way to stay on top of the changes.

One way to keep on track, of course, is to take continuing education seminars and read articles such as this one. But even that’s not enough. Because your industry is no doubt unique, some changes and new requirements may not make a state or national publication or attract enough broad attention to warrant an article or seminar.

That’s where self-education comes in. Become familiar with the government sources relevant to your industry.

In the following case, HR and management missed an important agency interpretation on how to compensate employees exposed to industry-specific hazards at work. The directive was readily available on the web site of the Occupational Safety and Health Administration (OSHA). What followed was extensive, expensive and needless litigation.

Recent case: Vicki Pacovsky and Darryl Kosanovich are nurses who both worked for Beverly Healthcare. Both accidentally received a “needle stick” at work and therefore could have been exposed to bloodborne pathogens like hepatitis B or HIV.

OSHA, as part of its mission to regulate workplace health and safety, has issued a “bloodborne pathogens standard,” which requires employers to make treatment available “at no cost to employees.”

Both nurses got treatment, but weren’t paid for their commute time to medical care or their transportation costs. OSHA discovered this and issued two citations to Beverly Healthcare.

The company appealed, arguing that it had no idea OSHA interpreted the employer’s obligation to include paying employees for the time it takes to get to and from medical appointments and for their travel expenses.

But the agency said it had issued a compliance directive on the subject. It also issued an opinion letter in response to another employer’s direct question on the subject. That letter said that “when receiving the vaccine or commuting to have it administered, employees must be considered on-duty.” Beverly Healthcare said it never read the opinion letter, so it shouldn’t apply.

The 3rd Circuit Court of Appeals felt differently. It said that the OSHA opinion letter was publicly available at all relevant times, and it was the employer’s responsibility to educate itself. The court upheld the citations. (Secretary of Labor v. Beverly Healthcare–Hillview, No. 06-4810, 3rd Cir., 2008)

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