IHMM Today May 17, 2022

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Beltway Buzz – Ogletree & Deakins

EEOC, DOJ Issue Guidance on AI in the Workplace. On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) each issued guidance documents addressing potential disability discrimination that might result from employers’ use of artificial intelligence (AI) tools or other computer software when making employment decisions. The EEOC’s guidance, titled, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” focuses on three primary concerns regarding AI tools and the potential applicability of the Americans with Disabilities Act (ADA):

• The guidance notes that under the ADA, employers using AI to assess job applicants and/or employees may be required to provide reasonable accommodations. According to the guidance, examples of reasonable accommodations include extended time to perform a task or an alternative test.
• The guidance warns of AI tools that may unlawfully “screen out” individuals from job opportunities. For example, an AI tool might automatically reject an applicant with a gap in his or her employment history, even though the gap was caused by a disability that required the individual to stop working in order to undergo medical treatment.
• Further, the guidance notes that in some instances, AI assessment tools might violate the ADA’s restrictions on disability-related inquiries and medical examinations.

Of important practical consideration for employers, the guidance offers tips and best practices for determining whether AI tools potentially discriminate against individuals with disabilities.

Jennifer Betts, Danielle Ochs, and Zachary Zagger have the details.

EEOC Nomination Hearing. On May 10, 2022, the U.S. Senate Committee on Health, Education, Labor and Pensions held a hearing on Kalpana Kotagal’s nomination to be a member of the EEOC. With Commissioner Janet Dhillon’s term set to expire on July 1, 2022, President Biden is moving quickly to ensure that Democrats gain a majority on the Commission as soon as possible. If confirmed, Kotagal will join fellow Democrats, chair Charlotte Burrows and vice chair Jocelyn Samuels, as well as Republican commissioners Keith Sonderling and Andrea Lucas. That potential Democratic majority could lead to an eventual break in the current regulatory logjam at the Commission. The general counsel’s position remains vacant following the expiration of the term of Acting EEOC General Counsel Gwendolyn Young Reams in December 2021.

House Dems Push Wage and Hour Bill. On Wednesday, May 11, 2022, the U.S. House Committee on Education and Labor’s Workforce Protections Subcommittee held a hearing titled “Standing Up for Workers: Preventing Wage Theft and Recovering Stolen Wages.” The hearing focused on Democrats’ promotion of the Wage Theft Prevention and Wage Recovery Act (H.R. 7701, S. 4174), which was recently introduced in both the U.S. House of Representatives and U.S. Senate. The bill would, among things, implement prescribed federal paystub disclosures, make it easier for plaintiffs’ attorneys to bring class actions by removing the Fair Labor Standards Act’s (FLSA) “opt-in” requirement, increase civil penalties, increase liquidated damages to two or three times the amount of unpaid wages, and ban arbitration of wage and hour disputes. Of course, when the stakes of wage and hour disputes are raised dramatically—as this bill, if enacted, would do—drawn-out litigation is a likely result.

Senator Sanders Urges Federal Contractor “Blacklisting.” As a follow-up to his recent push for a federal contractor blacklisting scheme, Senator Bernie Sanders (I-VT), who chairs the U.S. Senate Committee on the Budget, held a hearing last week titled “Should Taxpayer Dollars Go to Companies that Violate Labor Laws?” During his opening remarks, Senator Sanders asked President Biden to fulfill promises he made on the campaign trail to “institute a multi-year federal debarment for all employers who illegally oppose unions” and to “ensure federal contracts only go to employers who sign neutrality agreements committing not to run anti-union campaigns.” As for the business community’s response, U.S. Chamber of Commerce official Glenn Spencer stated in his written testimony that “[p]reventing a company from participating in federal contracting would limit the ability of the federal government to seek out the most efficient and effective provider of a particular service.”

Business Groups to DOL: Pending OT Reg. Changes Threaten Economy. According to the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, the U.S. Department of Labor (DOL) was scheduled to issue a proposed rule amending the regulations implementing the FLSA’s white-collar exemptions in April 2022. As part of its efforts opposing such a rulemaking, the Partnership to Protect Workplace Opportunity (PPWO) and ninety-three business groups sent a letter this week to Secretary of Labor Marty Walsh, urging the DOL to “abandon or at least postpone issuance of its announced proposed rulemaking altering the overtime regulations under the Fair Labor Standards Act.” The PPWO further stated that “[d]ue to significant concerns with supply chain disruptions, workforce shortages, inflationary pressures, and the shifting dynamics of the American workforce following the COVID-19 pandemic, any rule change now would be ill-advised.” Potential changes to the overtime regulations are likely to be the subject of significant policy debate in the second half of President Biden’s term.

Registry of CLH intentions until outcome

Army Corps of Engineers Proposes Changes in Occupational Safety and Health Programs for Federal Employees

The U.S. Army Corps of Engineers (USACE) Safety and Health Requirements Manual (EM 385-1-1) is the gold standard for Safety and Occupational Health regulations. The manual holds a long history dating back to 1941 and is designed to facilitate the standardization of all safety programs. The EM 385-1-1 prescribes the safety and health requirements for all Corps of Engineers activities and operations. The USACE is soliciting comments on the proposed revisions to EM 385-1-1. USACE intends to update the manual and periodically thereafter, to reflect such public input, experience, and innovation. The agency will address significant comments received in the next revision of this manual.

This is an opportunity for IHMM to expand the recognition of the CSHM already cited in the ACE manual, as well as expand recognition of the CHMM.

The current manual may be seen here.

Specifically, USACE is soliciting assistance in the form of “data, comments, literature references, or field experiences, to help clarify the policy requirements for implementing Safety and Occupational Health activities” for both USACE and contractor personnel. More information on the nature of USACE needs is available in the notice.

The deadline for submitting written comments on the draft is June 13, 2022.

Notice of Public Meetings in 2022 for International Standards on the Transport of Dangerous Goods

The PHMSA Office of Hazardous Material Safety (OHMS) will host public meetings in advance of three international meetings to allow the public to give input on current proposals being considered by the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods (UNSCOE TDG) and the International Civil Aviation Organization’s (ICAO) Dangerous Goods Panel (DGP). These international meetings include:

1. The 60th session of the UNSCOE TDG, scheduled for June 27 to July 6, 2022, in Geneva, Switzerland.
2. The ICAO DGP Working Group 22, tentatively scheduled for November 21–25, in Montreal, Canada.
3. The 61st session of the UNSCOE TDG, scheduled for November 28 to December 6, 2022, in Geneva, Switzerland.

Each of these public meetings will be held approximately two weeks before the corresponding international meeting. Specific information for each meeting, including date, time, conference call-in number, and details for advance registration will be posted when available on the PHMSA website under “Upcoming Events.” These meetings will be virtual, with concurrent in-person sessions possible, pending public health guidelines.

The Federal Register announcement can be found here: https://www.govinfo.gov/content/pkg/FR-2022-03-03/pdf/2022-04435.pdf utm_source=federalregister.gov&utm_medium=email&utm_campaign=subscription+mailing+list

FEDERAL CREDENTIAL RECOGNITION – CALL TO ACTION – Freedom to Invest in Tomorrow’s Workforce Act

CALL TO ACTION – Representative Spanberger of Virginia’s 7th Congressional District has drafted legislation entitled,  H.R. 2171, “Freedom To Invest in Tomorrow’s Workforce Act.” This legislation expands the provisions of existing law with respect to the allowable uses of Section 529 education tuition accounts to include most expenses paid by the holders of private professional certifications. We need you to contact your House and Senate members to ask them to co-sponsor this legislation.

CLICK HERE TO PARTICIPATE

You can support this effort with your voice and message. Go here>  https://ihmm.org/45-in-5-task-force/  and fill out your contact information where provided and help to pass H.R. 2171/S. 905.

IHMM/HMS Coronavirus Resources

A Collaborative Culture

There are 697 different conversations going on in the IHMM/HMS Collaboration platform this week.

A collaborative culture is important for every business but is especially important for our hazardous materials, dangerous goods, environment, health, and safety communities of practice. Do you have a problem you need to solve and want the opinions of your colleagues? This is where we come together to help each other.

IHMM credentialed professionals are at the top 1% of their professions and their reach is global. We are at the forefront of environmental protection, health, and safety and this is where collaborating with the best people in their fields, always willing to help one another, lessens the stress of our jobs, and where we strive as a team to make a difference of which we are proud.

We opened COLLABORATION to enable thousands of certificants and supporters to collaborate together. You can collaborate here.

Access to COLLABORATION is through the same username/password you use to access your MYIHMM account. Having a problem? Contact Jimmy Nguyen at [email protected]

Columbia Southern University

The Hazardous Materials Society [HMS] is a partner of Columbia Southern University. Columbia Southern University is an online university based in Orange Beach, Alabama, that strives to change and improve lives through higher education by enabling students to maximize their professional and personal potential.

A subsidiary of Columbia Southern Education Group, CSU offers online degree programs at the associate, bachelor, master, doctorate or certificate levels in a multitude of areas such as occupational safety and health, fire administration, criminal justice, business administration, human resource management, health care administration and more. CSU also features undergraduate and graduate certificate programs to provide focused training in specialized areas for adult learners.

Click on the CSU graphic at left and learn more about the professional development and degree program opportunities at CSU.

IHMM CONFERENCES FOR 2022

IHMM will attend and support a number of conferences and trade shows throughout 2022, virtually as well as in-person as COVID issues allow. Below are some of the conferences IHMM will support in 2022.

Are there conferences you believe IHMM should attend that do not appear here? If so, let us know by sending an email to [email protected]

VENDOR ALERT

IHMM had a record number of applications in 2021 – 704.  In 2021 IHMM delivered the largest number of examinations since 2016 – 477.  IHMM has 975 students in the pipeline moving through applications and examinations. IHMM has 358 students taking examinations right now. IHMM has another 546 students headed to take examinations.

Are you seeing this business as a vendor of education and training services?

Contact IHMM Executive Director Eugene A. Guilford, Jr., CAE, at [email protected]

HMS EVENTS CALENDAR