April 8, 2002

OSHA: Consent to Inspection Waives Right to Object Later

Holland & Knight Alert
Howard Sokol


Changes to the HIPAA Privacy Rule Affects Employers and Self-Insured Plans

The Department of Health and Human Services has issued proposed modifications to the Standards for Privacy of Individually Identifiable Health Information (Privacy Rule), which implemented the privacy requirements of the Health Insurance Portability Accountability Act of 1996, otherwise known as HIPAA.  Of particular interest to employers is the clarification making it permissible for group health plans to share enrollment and disenrollment information with plan sponsors without the plan sponsor having to amend applicable plan documents.  Likewise, the amended Privacy Rule will permit a group health plan, health insurance issuers and health maintenance organizations (HMOs) to disclose protected health information to the plan sponsor, provided the applicable group health plan documents contain restrictions on the plan sponsor's use and disclosure of this information. Another modification eases the consent requirement when private health information is used by a covered entity in connection with treatment, payment or health care operations.  The Department has requested that all comments on the proposed modifications be postmarked no later than April 26, 2002; the general compliance date for compliance with the Privacy Rule is April 14, 2003.


Supreme Court Denies Back Pay to Fired Illegal Immigrants

Frederick Braid

The U.S. Supreme Court has resolved the tension between enforcement of NLRB remedies and the enforcement of immigration laws in favor of immigration policy. In so doing, the Court refused to enforce an NLRB order granting back pay to undocumented immigrants who were illegally fired for union activity.  The divided court voted 5-4 that the NLRB had frustrated the spirit of the Immigration Reform and Control Act's goal of preventing the hiring of illegal immigrants when it ordered a California company to pay almost $67,000 to an illegal immigrant it fired during a union organizing effort.  As undocumented immigrants have no legal right to work in the United States, the Court concluded that a worker's violation of the nation's immigration laws outweighs an employer's violation of its labor laws.


Consent to Inspection Waives Right to Object Later

Howard Sokol

The District of Columbia Circuit affirmed the Occupational Safety and Health Review Commission's decision that an employer who consents to an OSHA inspection waves the right to object that there was no probable cause. In the case before it, a family-owned construction company had been inspected 12 times in less than two years.  Although the employer originally consented to the inspections, eventually it objected that there was "not a statistical probability" that it was randomly selected for inspection with such frequency and, in the alternative, sought to obtain information to determine whether the rash of inspections violated Section 8(a) of the OSH Act, which requires that the Secretary of Labor conduct inspections/investigations only within "reasonable limits" and in a "reasonable manner."  The Commission denied the employer discovery concerning the criteria for selection of the employer for inspection, and the employer appealed claiming that the Commission had misinterpreted Section 8(a), and that its rights under the OSH Act should not be affected merely because it consented to the inspections.  The Circuit Court reasoned that consent given by employers to OSHA regarding inspections is no different than consent given in the criminal context under the Fourth Amendment.  Once consent is given, OSHA, much like the police with a search, need not have probable cause to conduct an inspection.  Accordingly,  it is necessary to object to an OSHA inspection immediately in order to preserve your rights in the rare case where there may be administrative abuse that could defeat OSHA’s attempt to get a search warrant.  


California Requires Disclosure of Background Checks

Christopher R. Nolan

California law now requires employers to provide a copy of any background check report, or a copy of the information if the investigation was performed internally, to the subject of the investigation, whether or not a copy has been requested by the individual.  Such information must be provided within seven days of receipt of the report or information, or earlier if a meeting with the individual is conducted.  Failure to do so may expose the employer to liability.

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