An Employer ALERT
The Department of Transportation (DOT) announced that as of August 31, 2009 the new direct observation rules must be observed. Those rules require (previously permitted) regulated employers to directly observe every collection upon return to duty or follow-up to a violation.
Under Section 40.67(b)(i) the direct observation includes a requirement the donor “raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show [the collector] by turning around, that they do not have a prosthetic device.”
A drastic rule change? Yes, it is. Collection providers are scrambling to prepare and some are going to stop providing collection services all together.
WARN YOUR EMPLOYEES
But, one key point is being missed: employees must be warned! In my opinion, all employers would be well advised to not only place a new warninig about this change into their policies but also to post notice of this change in conspicuous places throughout their workplaces.
Recent court cases (e.g. McVey v. National Organization Services, Inc., Munn v. Kraft Foods, Inc.) have made it clear that complete knowledge of a company’s program and warning of the consequesces of violating that program are essential.
Failure to provide adequate warning could cost an employer in a wrongful discharge action, unemployment case or workers’ compensation challenge.
Additionally, it must be remembered that this change impacts not just DOT-regulated employers but, depending on employer choices and in certain industries, employers in 10 states (AL, CA, CT, DE, MD, MT, ND, OH, TN, VT) MUST follow DOT rules. Any employer that has chosen to follow DOT rules or negotiated doing so in their collective bargaining agreemant would also be impacted by this rule change.
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