Immigration, OSHA, the Supreme Court and the White House – Navigating the Most Recent Developments
Two of the most recent developments under the Trump administration affecting employers include the Supreme Court’s allowance of a limited “travel ban” for travelers to the United States from certain countries based on potential terrorism concerns, and a delay and further potential changes regarding OSHA’s new requirement to electronically submit injury summaries. The following are brief summaries of both developments that should help navigate them.
What the Supreme Court’s “Travel Ban” Means for Employers
By Will Krasnow, Boston Office – Constangy, Brooks, Smith & Prophete, LLP
The U.S. Supreme Court issued a preliminary ruling on June 26, 2017 in the Trump Administration’s challenges to lower court decisions on the “travel ban.” The Administration had sought to:
* stay preliminary injunctions issued against the revised travel ban issued March 6 and upheld by U.S. Courts of Appeal for the Fourth and Ninth Circuits; and
* seek Supreme Court review on the merits of the Court of Appeals decisions.
In its ruling, the Court granted the Administration’s request for a stay of the preliminary injunctions, but only in part. The Court also granted the Administration’s petition for certiorari and directed that the cases be consolidated and set for argument in the first session of its October 2017 term.
The revised travel ban applied to foreign nationals of six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – with certain exceptions, including ones for lawful permanent residents of the United States. The revised travel ban was a moderated version of the original ban, which was issued on January 27 and was almost immediately enjoined by a federal court in Washington State, which was affirmed by the Ninth Circuit. After the revised travel ban was issued in March, the revised ban was enjoined in part by a federal court in Maryland (affirmed by the Fourth Circuit) and in total by a federal court in Hawaii (affirmed in large part by the Ninth Circuit). The Government is seeking Supreme Court review of the Fourth Circuit decision and the Ninth Circuit decision related to the Hawaii case.
The Supreme Court said that the injunctions would remain in place (meaning that the travel ban will not be enforced) where the foreign national from one of the six designated countries has “a credible claim of a bona fide relationship with a person or entity in the United States.” Personal relationships could include family members in the United States. Relationships with entities could include employment, or acceptance or enrollment at a university, in the United States. According to the Court, relationships with entities “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the revised travel ban].”
To this extent, the majority on the Court agreed with the lower courts that the harm to the affected U.S. family members and entities resulting from enforcement of the revised travel ban arguably outweighed the Government’s national security interests.
On the other hand, with respect to foreign nationals who lack these bona fide relationships with persons or entities in the United States, the Court stayed the injunctions (meaning that the travel ban will be enforced), finding that “the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”
Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, dissented in part, arguing that the injunctions should have been stayed in their entirety.
What is the practical impact of the Court’s decision?
Until the Supreme Court issues a final decision after arguments in the fall, the revised travel ban will not be enforced with respect to foreign nationals from the six designated countries who are coming to the United States pursuant to a “close relationship” with a family member in the United States or a documented, pre-existing relationship with a U.S. entity.
The revised travel ban will be enforced with respect to foreign nationals from the six countries who do not have these relationships, including – for example – “a nonprofit group devoted to immigration issues” that “contact[s] foreign nationals from the designated countries, add[s] them to client lists, and then secure[s] their entry by claiming injury from their exclusion.”
These same distinctions will apply to the refugee cap in the revised travel ban.
There is some concern that U.S. Customs and Border Protection officials at the port of entry will be burdened with deciding in some cases whether the applicant (e.g., a person entering on a tourist visa) has a sufficiently documented connection to a U.S. source. That decision making may slow the entry process and could lead to further litigation when entries are denied.
However, it does not appear that this will be a problem in clear cases, such as students with student visas, or individuals with family or employment-based visas.
OSHA Proposes To Give Employers Until Dec. 1 to Electronically Submit Injury Summaries — and Will Propose Changing Other Parts Of The Rule.
By Bill Principe and Pat Tyson, Atlanta Office – Constangy, Brooks, Smith & Prophete, LLP
The Occupational Safety and Health Administration (OSHA) announced some time ago that it was going to require certain employers to submit their Form 300A annual injury and illness summaries electronically. This requirement was part of the Agency’s new final rule to “Improve Tracking of Workplace Injuries and Illnesses,” promulgated during the Obama Administration. Electronic versions of the Form 300A summaries for 2016 would have been due July 1, 2017.
However, the Agency published a Notice of Proposed Rulemaking in the June 28, 2017 Federal Register to extend the July 1 deadline for five months, until December 1, 2017. In addition to proposing the five-month delay, OSHA announced in the Notice that it intends to issue a separate proposal to reconsider, revise, or remove other provisions of the new injury and illness tracking rule. Besides the electronic submission requirement, that new rule, issued on May 12, 2016, also includes controversial new anti-retaliation requirements that OSHA interpreted as restricting post-injury drug testing and incident-based safety incentive programs. Also controversial, and likely to be part of OSHA’s planned reconsideration, was the Obama Administration’s plan to post the injury and illness information submitted by employers on OSHA’s website. OSHA will accept comments on the due date extension proposed in this most recent Notice until July 13, but will not yet consider any comments on other provisions of the new rule.
Primarily, the new injury and illness tracking rule requires larger establishments with at least 250 employees at any time during the previous calendar year to submit their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries to the Agency through a new website that would allow, with very limited exceptions, for public access to that information. Smaller establishments, with at least 20 employees, in certain industries with high injury and illness rates, are required to submit the information from their 300A Annual Summary to the new OSHA injury and illness website each year. These electronic submission requirements were to be phased in over a two-year period. Before this proposed extension, both larger and smaller establishments would have been required to submit their 300A Forms – but not the OSHA 300 logs or the 301 Incident Reports – by July 1.
This article was written by Kenneth P. Carlson, Jr. of Constangy, Brooks, Smith & Prophete, LLP