By Benjamin D. Briggs, Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Keep your holidays happy and safe. At this time of year, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace environment for employees and customers and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn bring liability onto the employer.

The holidays are a time to redouble your focus on workplace safety. At this time of year, people can be distracted or tired and may be teaming with people they do not ordinarily work with due to others taking time off. Working with someone new, especially at high risk jobs, may be a recipe for disaster. It is important to ensure all employees are properly trained and qualified for the tasks they are being asked to perform, especially if a task is not within their normal job activities.

In addition, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace for employees, customers, and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn, bring liability onto the employer. The holidays are a good time to remind employees of drug and alcohol policies and to be on the lookout for violations of those policies. See Eleventh Circuit Says “NO” to Drunk Driving, and President Declares “National Impaired Driving Prevention Month”.

The holidays are also a time when your employees may be at risk for workplace violence, both from within the company and from third parties. Many employees will be excited about the time spent with friends and family, but many others may not have those opportunities. Be aware of the signs of a distressed and potentially violent employee. See for instance, Wave of Shootings Puts Workplace Violence Back in the Spotlight, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers. We have also blogged about workplace safety risks from shoppers and third-parties. See Holiday Shopping and Crowd Management Safety Guidelines for Retailers,

In addition be on the lookout for other holiday workplace liability issues, especially at company holiday parties. For instance, in Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties, we suggested that employers consider these tips to minimize your organization’s exposure to legal liability and, more importantly, prevent an undesirable incident from occurring at your office holiday party:

  • Prior to the party, circulate a memo to reiterate your company’s policy against sexual and other forms of harassment. Remind employees in the memo that the policy applies to their conduct at company parties and other social events, and they should act in a professional manner at all times.
  • Set a tone of moderation by reminding employees of the company’s policy against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs.
  • Ensure your dress code prohibits any form of revealing or provocative attire, and remind employees that the policy applies at company-sponsored events.
  • If appropriate, allow employees to invite a spouse or their children to the party. Many employees might think twice about their actions if spouses and/or children are present.
  • Consider limiting the number of alcoholic drinks or the time during which alcohol will be served. In either case, stop serving alcohol well before the party ends.
  • Serve food at the party so employees are not consuming alcohol on an empty stomach and make sure there are plenty of non-alcoholic alternatives available.
  • Host the party at a restaurant or hire a caterer. Remind bartenders that they are not permitted to serve anyone who appears to be impaired or intoxicated and to notify a particular company representative if anyone appears to be impaired.
  • Remind managers to set a professional example, and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated.
  • Anticipate the need for alternative transportation and don’t allow employees who have been drinking heavily to drive home. If an employee appears to be heavily intoxicated, have a manager drive the employee home or ride with the employee in a cab to ensure he/she gets home safely.
  • Check your insurance policies to ensure they cover the company adequately, including any accidents or injuries that arise out of a company party or event.
  • Promptly investigate any complaints that are made after the party, and take any necessary remedial action for conduct that violates company policy.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

 

By Annette Tyman, Lawrence Z. Lorber, Jaclyn W. Hamlin, and Brent I. Clark

 

Seyfarth Synopsis: The first of several anticipated challenges to Executive Order 13673, “Fair Pay and Safe Workplaces,” has resulted in a preliminary injunction staying the implementation of some – but not all – aspects of the Executive Order and its implementing regulations. In a significant victory for the government contracting community, the Associated Builders and Contractors of Southeast Texas won an injunction staying the application of the reporting and disclosure requirements, as well as the prohibition on entering into mandatory pre-dispute arbitration agreements.  The Judge left the paycheck transparency provisions in effect, however, and as a result, government contractors must still plan for compliance with those requirements.

Introduction

For our readers that are interested in occupational safety and health topics, we are blogging our colleagues “Management Alert” below, with this introductory note. OSHA citations are covered among the labor laws covered by the Executive Order 13673 (Blacklisting Order). The way the Blacklisting Order reads is that the covered violations include citations which are not final, which are being contested by the employer, and which may ultimately be withdrawn through settlement or by a Judge once the employer has had a chance to present its defense.  The Blacklisting Order is another example of the government’s “guilty until proven innocent” approach to regulating businesses and employers.

Note also that the Blacklisting Order will be applicable under:

  • The Fair Labor Standards Act
  • The Occupational Safety and Health Act of 1970 (including OSHA-approved State Plans equivalent to State Laws)
  • The Migrant and Seasonal Agricultural Worker Protection Act
  • The National Labor Relations Act
  • 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act
  • 41 U.S.C. chapter 67, also known as the Service Contract Act
  • Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity)
  • Section 503 of the Rehabilitation Act of 1973
  • The Vietnam Era Veterans’ Readjustment Assistance Act of 1972 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974
  • The Family and Medical Leave Act
  • Title VII of the Civil Rights Act of 1964
  • The Americans with Disabilities Act of 1990
  • The Age Discrimination in Employment Act of 1967
  • Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors)

In a significant victory for the government contracting community, a federal judge sitting in the U.S. District Court for the Eastern District of Texas partially stayed the implementation of Executive Order 13673, “Fair Pay and Safe Workplaces,” referred to in the government contracting community as the “Blacklisting Order.”  As discussed in more detail here, the Blacklisting Order would:

  1. Require government contractors to disclose “labor law violations” under fourteen different statutes and Executive Orders when bidding for or modifying contracts;
  2. Prohibit employers from entering into mandatory pre-dispute arbitration agreements with employees; and
  3. Require certain disclosures to independent contractors and employees concerning their employment status and information related to wages and hours worked.

When the White House issued the Executive Order, the government contracting community expressed concerns about the substantial burdens it would impose on businesses and noted that the Order seemed to exceed the limits of Executive power.  Judge Marcia Crone, a federal judge in Texas, agreed.  Late on October 24, 2016, Judge Crone issued a preliminary injunction blocking: (1) the labor law violations disclosure requirements and (2) the prohibition against entering into mandatory pre-dispute arbitration agreements.  The preliminary injunction applies to all federal contractors subject to the Executive Order and it blocks all aspects of the requirements and the implementing regulations, except the paycheck transparency provision.

The Plaintiffs, an association of government contractors in Texas, argued that the Executive Order and its implementing regulations and guidance exceeded Executive power and would impose irreparable harm on their businesses.  Judge Crone found the Plaintiffs’ arguments compelling with regard to the reporting and disclosure requirements and arbitration clause prohibitions, and stayed the implementation of those requirements.

In her decision, the Judge addressed several of the arguments raised by the contracting community Plaintiffs and the government Defendants.

  • The Judge found that the Executive Order and its implementing regulations and guidance likely exceeded the limits of Executive power.
  • She noted that fourteen statutes and Executive Orders of which the Blacklisting Order requires contractors to publicly disclose “violations” all have their own detailed enforcement mechanisms and penalties.
  • The Judge noted that under the Blacklisting Order, a contractor could face debarment or disqualification even if it was contesting a violation or over nothing more than the issuance of a citation by an individual government agency official.
  • Judge Crone also found persuasive the Plaintiffs’ arguments that the provisions of the Executive Order and Final Rule which restrict or prohibit certain mandatory pre-dispute arbitration agreements are in violation of the Federal Arbitration Act and the government’s general policy in favor of arbitration.
  • The Judge found the reporting and disclosure requirements to be “compelled speech” that likely violates the contractors’ First Amendment rights and also agreed that the Executive Order likely violates contractors’ Due Process rights by “compelling them to report and defend against non-final agency allegations of labor law violations without being entitled to a hearing at which to contest such allegations.”
  • Judge Crone found that the Executive Order is likely arbitrary and capricious “in view of the complex, cumbersome, and costly requirements . . . which hamper efficiency without quantifiable benefits.”

Although the contracting community’s victory is substantial, it was not complete, as Judge Crone left the paycheck transparency provisions to take effect on their regular schedule (starting on January 1, 2017).  The paycheck transparency provisions require that contractors with procurement contracts of $500,000 provide their employees with a document disclosing “the individual’s hours worked,  overtime hours, pay, and any additions made to or deductions made from pay.” For exempt employees, the document may omit information concerning overtime hours worked so long as the individual has been informed of his or her exempt status.  Covered contractors in states with equivalent paycheck transparency laws, such as New York and California, are deemed to be in compliance with the Executive Order’s requirements so long as they comply with their state’s paycheck transparency law.  Contractors should also be aware that there is always a possibility that the preliminary injunction may be lifted – whether by the Fifth Circuit or another federal court – and in that event, the reporting and disclosure requirements could be reinstated.  For that reason, covered contractors may wish to continue to collect data in case they find themselves once again subject to the reporting and disclosure obligations.

The request for – and subsequent partial granting of – a preliminary injunction staying the implementation of certain provisions of the Blacklisting Order is only the opening salvo in what is likely to be a long fight between the contracting community and the federal government.  As we discussed in our previous alert on the topic, multiple court challenges are possible, and the Blacklisting Order’s provisions may appear before Congress at some point.

Meanwhile, thanks to Judge Crone’s preliminary injunction, the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements are enjoined until further notice, while we continue to closely monitor developments.  Preliminary injunctions typically remain in effect at least until the conclusion of the underlying litigation.  The Plaintiffs may petition the court for the preliminary injunction to become permanent, blocking the government from enforcing the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements (unless the injunction is overturned).  Or the government Defendants may appeal to the U.S. Court of Appeals for the Fifth Circuit, perhaps paving the way for an ultimate ruling by the U.S. Supreme Court.  The ultimate resolution of the contracting community’s concerns about the Blacklisting Order remains to be seen.  One thing is clear, however: while government contractors should be pleased with their victory in Texas, they must still plan to comply with the paycheck transparency provisions.  The contracting community has won the first battle, but the war over blacklisting continues.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OFCCP & Affirmative Action Compliance Team, the OSHA Compliance, Enforcement & Litigation Team, or the Workplace Policies and Handbooks Team.

By Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: In a challenge brought by trade associations for the farm supply and fertilizer industries, the D.C. Circuit vacates OSHA memorandum narrowing the retail exemption from the PSM standard.

The U.S. Court of Appeals for the District of Columbia Circuit recently ruled against OSHA on a Petition for Review of an OSHA interpretative memorandum in Agricultural Retailers Ass’n & Fertilizer Inst. v. United States Department of Labor, No. 15-1326 (D.C. Cir. Sept. 23, 2016).

In this case, the Agricultural Retailers Association and the Fertilizer Institute sought review of a July 22, 2015 OSHA memorandum and interim policy interpretation that had significantly narrowed the Retail Facilities Exemption to the Process Safety Management of Highly Hazardous Chemicals (PSM) standard, 29 C.F.R. § 1910.119.   The challenged interpretation had a dramatic effect on agricultural retailers that provide fertilizers to end users in the agricultural industry.  In that regard, the interpretation swept in many previously-exempt fertilizer and farm supply retailers into coverage under the onerous PSM standard.

OSHA issued the interpretation after a 2013 explosion at a West, Texas fertilizer supplier left 15 people dead and many others injured. Under the interpretation, OSHA retreated from the so-called “50 percent test” for determining whether a seller of highly hazardous chemicals qualified for the retail exemption.  Under that test, an establishment was exempt from PSM coverage if it “derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user.”  Application of this test meant that fertilizer suppliers typically fell within the exemption despite having large quantities of highly hazardous chemicals at their establishments.  The challenged interpretation applied a different, much narrower, test to determine applicability of the exemption.  Under that test, retail facilities included only those “organized to sell merchandize in small quantities to the general public” as set forth sectors 44 and 45 of the NAICS Manual.  This definition precluded employers that sold or distributed large, bulk quantities of highly hazardous chemicals (i.e., farm and fertilizer supply businesses) from relying upon the retail exemption.

The thrust of the petitioners’ challenge to OSHA’s memorandum was that it was actually an OSHA standard, not an interpretation, and that, in turn, OSHA was required to follow rulemaking procedures, including notice-and-comment requirements. OSHA admittedly did not follow these procedures.  OSHA contended that rulemaking procedures did not apply because its action was a mere interpretation of a standard, and that its memorandum did not issue or modify a “standard.”  The D.C. Circuit rejected OSHA’s argument and agreed with petitioners.  In so doing, the court held that the memorandum amounted to a “standard within the meaning of the OSH Act” because its purpose was to correct “a particular significant risk,” rather than guide general enforcement.  Given that determination and OSHA’s admitted failure to follow rulemaking procedures, the court granted the petition and “vacated” OSHA’s memorandum.

For the time being, this means that employers (including agricultural retailers) may once again rely on the “50 percent rule” for determining applicability of the retail exemption to the PSM standard. How long that reprieve lasts remains to be seen given OSHA’s apparent commitment to this issue, but one thing is clear — any future change to the retail exemption will afford stakeholders the opportunity to be heard through notice-and-comment procedures.

In the meantime, we will continue to monitor and keep you updated on this issue as it develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 

 

By Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: Recently decided court case finds that motor vehicle carriers may lawfully require overweight drivers to submit to a medical examination testing for obstructive sleep apnea.

We had previously blogged about the U.S. Department of Transportation’s Advance Notice of Proposed Rulemaking on the “Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea.” 47 Fed. Reg. 12642 (March 10, 2016).  The American Journal of Industrial Medicine, with the National Institute for Occupational Safety and Health (NIOSH), had found that U.S. long-haul truck drivers were twice as likely to be obese compared to the adult working population, as well as more likely to smoke and suffer from other risk factors for chronic disease. “Obesity and Other Risk Factors: The National Survey of U.S. Long-Haul Truck Driver Health and Injury” (Jan. 2014).

An interesting Eighth Circuit Court of Appeals case, Parker v. Crete Carrier Corp., et al., No. 16-1371 (8th Cir. Oct. 12, 2016), delves into the underlying issues related to these previous blogs. Notably, the oral argument in front of the Court is available for listening.

Crete Carrier Corporation (Crete) required its truck drivers with a Body Mass Index (BMI) of 35 or greater to submit to medical examinations to determine whether they had obstructive sleep apnea. Drivers found to have obstructive sleep apnea were placed in a treatment regimen. One driver, Robert J. Parker, refused to submit to the examination. In response, Crete stopped giving Parker work. Parker then sued Crete, alleging it violated the Americans with Disabilities Act (ADA) by requiring the examination and discriminating on the basis of a perceived disability. The District Court granted summary judgment to Crete. Parker appealed.

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) requires commercial vehicle drivers to get medical examinations every two years to ensure they are physically qualified to operate commercial vehicles. The exam measures height and weight, assesses health history, tests vision, hearing, blood pressure and urine, and physically examines body systems.  Two advisory committees, the Medical Review Board and the Motor Carrier Safety Advisory Committee, have recommended that FMCSA amend its certification standards to reduce the risks from drivers who have obstructive sleep apnea.

When analyzing Parker’s claim against Crete, the court noted that an employer requiring a particular class of employees to get a medical exam must show that the exam is job-related and that it is a “business necessity.” To constitute a “business necessity,” there must be a reasonable basis for concluding that the class of drivers required to be examined poses a genuine safety risk. Moreover, the employer’s exam requirement must enable the employer to reduce that risk.

The Eighth Circuit concluded that Crete’s suspension of Parker was not a violation of the ADA because Parker refused to submit to a lawful medical examination. Crete factually established that “untreated obstructive sleep apnea tends to impair driving skills, increasing the risk of motor vehicle accidents by 1.2- to 4.9-fold.”  Moreover, “a sleep study is the only way to confirm or rule out an obstructive sleep apnea diagnosis.”  Because obesity and BMIs above 33 are closely linked to obstructive sleep apnea and seeking treatment for sleep apnea decreases the risk of motor vehicle accidents, the Court found that the sleep study requirement for overweight drivers was a business necessity.

In light of the findings on sleep apnea, employers in the long-haul trucking industry should pay attention for changes in the law related to enhanced driver testing requirements, and ensure that any driver testing policies for a subset of drivers would constitute a business necessity in the eyes of the courts.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team, the Workplace Counseling & Solutions Team, or the ADA Title III Team.

By Mark A. Lies, II and Adam R. Young

Seyfarth Synopsis: As OSHA’s enforcement relating to employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels to address this hazard.

Business today is regularly conducted through cell phones, as a necessary tool for employees to communicate and access digital information. Bring Your Own Device programs and employee cell phone use present a range of employment and labor liabilities for employers: smartphones can be a forum for employees to engaged in protected concerted activity, an opportunity for unauthorized overtime work, and a tool to access inappropriate images and harass coworkers.  Yet the biggest challenge posed by cell phones is  their inappropriate use.

Distracted driving is the number one cause of workplace fatalities, and cell phones are the biggest cause of distraction in the forms of text messaging, talking, and game-playing. Cell phone distractions can impugn employees’ spatial awareness, recognition of hazards, and operation of dangerous equipment. Finally, studies show that certain cell phone batteries have resulted in fires and explosions.  Accordingly, employers with Bring Your Own Device programs or who provide cell phones for use at the workplace must understand and manage any risks that may be associated with the use of these devices.

Distracted Driving

Employers whose businesses require the use of cars, vans or trucks must understand that their policies and training regarding the safe operation of those vehicles–and the inclusion of a clear prohibition against texting on a hand held cell phone while driving–are of strong interest to OSHA, the law enforcement community, insurance carriers and potential civil litigants. Failure to address this hazard can result in significant employer liability.

Federal OSHA maintains a Distracted Driving Initiative, in which it targets texting as a major cause of workplace injuries.  In a 2010 open letter to employers, Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA) David Michaels said, “It is your responsibility and legal obligation to have a clear, unequivocal and enforced policy against texting while driving….Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their jobs. OSHA will investigate worker complaints, and employers who violate the law will be subject to citations and penalties.”  OSHA has used its General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, to issue citations and proposed penalties in these circumstances.  OSHA considers “distracted driving” which can include texting (and potentially the use of cell phones for telephone calls) to be a “recognized hazard” under the General Duty Clause to employee safety.  Penalties for willful violations of the Act under the General Duty Clause can be as high as $124,709.

Even with a no-texting policy, OSHA may cite employers when employees are texting while driving, where texting is a common workplace practice. OSHA indicates that “when it receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, [OSHA] will investigate and where necessary issue citations and penalties to end this practice.”  Accordingly, employers need to be wary of workplace texting, and make clear that texting while driving is prohibited.

Distracted Operation of Industrial Machinery

Inappropriate use of cell phones presents safety hazards far beyond the driving of personal vehicles. At the most obvious, operators of Powered Industrial Trucks or other industrial machinery, including overhead cranes, can be distracted by cell phone use.  OSHA regulations squarely forbid the use of cell phones in construction regulations pertaining to cranes and derricks (29 C.F.R. § 1926.1417(d)), but the hazard exists across any dangerous equipment.  Accordingly, active operation during the use of industrial equipment should be strictly prohibited.

Distracted Employees at the Workplace

As any employer with industrial machinery knows, preventing accidents starts with making sure employees are aware of their surroundings.  The inappropriate use of cell phones imperils employees’ ability to recognize and react to hazards, such as passing forklifts, which can hit pedestrian employees.  Of recent concern is the use of “augmented reality” games, such as Pokémon Go, in which players view the world through cell phone screens, walk around while distracted, and search real world sites for game-related information.  These games encourage cell phone use and distraction while walking around, and should be prohibited from the worksite.

Additional Liabilities for Distracted Employees

Of course, OSHA citations and associated penalties are not the only liabilities that employers must be concerned about when it comes to cell phone distractions. For example, thirteen states ban the use of handheld phones while driving for talking.  46 states and the District of Columbia ban text messaging for all drivers, and in many of the remaining states similar bans are in place at the county or city level.  These laws make texting while driving illegal and also open employers to liability for accidents that result from their employees’ distracted driving and improper use of cell phones.

Employees face both individual civil and criminal liability for damages that result from accidents caused by texting while driving or engaging in other work Likewise, employers face vicarious liability for the acts of their employees under agency law for personal injury or property damage they cause during the course of employment.  When an accident happens as a consequence of distracted driving or operating machinery while the employee is on company time, the employer is potentially liable.  Where the employer has not affirmatively prohibited texting while driving and enforced that policy, the employer faces potential liability as a result of the accident.

Vicarious liability, as it is called, is not a new legal concept. Employers have faced liability in similar situations for decades for the acts of their employees that occur during the course of the employment relationship. Consider the claims made against pizza delivery companies whose drivers were instructed to deliver a pizza in 30 minutes or less.  In the context of distracted driving, the price of vicarious liability can be significant.  In Florida, a lumber wholesaler settled for over $16 million after one of its salesman hit and severely disabled an elderly woman while talking on a cell phone.

Beyond potential OSHA administrative penalties and civil and criminal liability, employers should also consider how their policies and practices can affect their insurance rates. There is no question that with an increase in accidents caused by distracted employees, the cost of worker’s compensation and other insurance coverage will rise.

Cell Phone Fires and Explosions

Modern cell phones use lithium-ion batteries, that in some cases, allegedly have caused fires and sparks while in stand-by or charging. Defective batteries allegedly have produced smoke and grounded a flight, ignited a car, and smoldered on a child’s pillow.  A cell phone manufacturer has reported 35 cases of its devices’ batteries burning or exploding while charging, and has issued a recall for millions of devices.  The Federal Aviation Administration has issued a warning about a particular model of personal device, telling passengers ”not to turn on or charge these devices on board aircraft and not to stow them in any checked baggage.”

Consequently, some cell phones may represent a recognized fire hazard at the workplace. As the Agency’s understanding of the hazards develops, we anticipate that may OSHA address this issue under the General Duty Clause, citing employers who fail to protect employees from the recognized hazard of cell phone battery fires. Employees who work around flammable vapors or dust may face risks from fires and explosions.  It is a common practice at gasoline stations to have warnings that cell phones should not be used while fueling because of the potential for ignition of flammable gasoline vapors.  Employers must manage and limit the potential fire hazards posed by recalled cell phones in the workplace.

Conclusion

As OSHA’s enforcement relating to inappropriate employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels. Employers may wish to look closely at their policies, procedures, and training systems to determines whether updates are appropriate to reduce potential individual civil and criminal liability of employees, as well as the vicarious liability to the employer.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team or the Workplace Policies and Handbooks Team.

By James L. Curtis and Craig B. Simonsen

iStock_000060649530_MediumSeyfarth Synopsis: The National STEPS Network provides a working model of an industry wide employee onboarding and safety training program.

We attended the World Safety Organization International Environmental and Occupational Safety and Health Symposium this week. A Keynote address at the Symposium, presented by Rick L. Ingram of BP America and Elizabeth A. Haley of the  Petroleum Education Council, discussed the National Service, Transmission, Exploration & Production Safety (STEPS) Network.

The STEPS Network was organized in the face of oil and gas (O&G) industry wide injury and fatality statistics that were alarming to both OSHA and the industry. In response, in 2003, OSHA invited industry representatives and safety consultants from all associated fields to attend a meeting to make a change.  STEPS set-up and implemented an employee onboarding and training system that is applicable across the industry.

The National STEPS Network includes operators and contractors in the O&G Exploration, Production and Product Transmission industry as equally valued members in partnership with OSHA, NIOSH, other trade associations, and educators across the country. The Network’s goal was to serve all producing regions of the United States and to eventually share the program internationally.

The STEPS system as established provided three tiers of training:

  • Tier One: New employee onboarding, a 7 1/2 hour safety orientation program;
  • Tier Two: OSHA 5810, Hazards Recognition and Standards for On-Shore O&G Exploration and Production; and
  • Tier Three: Leadership Course for O&G Leaders.

The STEPS leadership indicates that the effort has been successful, providing over 940,000 Tier One orientation sessions through 2010. The National STEPS program has continued to grow, with now twenty-two independent regional networks serving twenty O&G producing states. Eight of the networks have signed formal alliances with OSHA, and the National STEPS Network signed a formal Alliance with OSHA and NIOSH on December 2, 2014.

For other industry segments, and for employers, the STEPS Network provides a working model for safety industry-wide onboarding and training. It is a model that may provide other industries and employers with food-for-thought.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: DHS’s recommendations for active shooter prevention and preparedness is only one piece of an effective workplace violence prevention program. Employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

With the wave of violence that has gripped the nation this summer, many clients are again asking how best to protect their employees. We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?” This blog includes an update on this important topic.

The Bureau of Labor Statistics has said in a news release that the number of workplace homicides in 2014 (409) was about the same as the total in 2013. Among the workplace homicides in which women were the victims, the greatest share of assailants were relatives or domestic partners (32 percent of those homicides). In workplace homicides involving men, robbers were the most common type of assailant (33 percent).

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries (CFOI) reported 14,770 workplace homicide victims between 1992 and 2012. From 2003 to 2012 over half of the workplace homicides occurred within three occupation classifications: sales and related occupations (28%), protective service occupations (17%), and transportation and material moving occupations (13%).

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In key Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %). The materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

As we noted in our previous blog, employers should review the DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 

 

 

Mark A. Lies, II, Patrick D. Joyce, Adam R. Young

iStock_000060649530_MediumSeyfarth Synopsis: OSHA’s new final rules call into question mandatory post-accident drug screenings and safety incentive programs, open the door to new retaliation citations, and will require employers to post OSHA logs electronically.   

Introduction

On May 12, 2016 the Occupational Safety and Health Administration published new final rules on discrimination and injury and illness reporting.  81 Fed. Reg. 29624.  First, a new anti-discrimination and anti-retaliation rule will come into force on August 10, 2016 for all employers, as discussed below. Employees must be informed about the requirements of the anti-retaliation rule relating to reporting injuries and illnesses by that date.  OSHA’s interprets this rule broadly to prohibit mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting.  OSHA further explains that incentive programs are retaliatory if they offer benefits to employees or workforces who do not report injuries and illnesses.  Finally, OSHA uses the rule-making to allow compliance officers to issue citations for retaliation, upending the current statutory employee retaliation enforcement framework under Section 11(c) of the Act.

The regulations further require employers to post workplace recordable injury and illness information electronically.  OSHA will release this employer injury and illness information publicly on its website, believing that its disclosure will “shame” employers into improving workplace safety and health.  The electronic data submission requirement will also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials.  The remaining provisions of the final rule, including the electronic reporting provisions, will take effect on January 1, 2017.

Drug Testing

Section 1904.35(b)(1)(iv) of the final rules prohibits an employer from discharging or discriminating against an employee for reporting a work-related injury or illness.  OSHA’s Preamble to the Final Rule interprets the regulation broadly to prohibit any “adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness.”  OSHA applies the prohibition to any “blanket post-injury drug testing policies deter proper reporting,” concluding that drug-testing alone constitutes an “adverse employment action.”  OSHA instructs employers to “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”  OSHA explains with examples: it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”

OSHA’s interpretation of its new rule calls into question the widespread use of mandatory post-accident drug testing programs.  While federal courts may not uphold OSHA’s reasoning that a drug-test, standing alone, is a form of an “adverse employment action,” employers should be mindful of their policies and should consider taking action to ensure compliance with the regulation.  Drug-testing policies should be revisited for compliance by August 10, 2016 since the rule requires that the employer have a compliant anti-retaliation policy by that date.

Incentive Programs

In its Preamble on the Final Rule, OSHA similarly condemns employer safety “incentive programs” as form of retaliation.  This position is consistent with OSHA’s past rulings and guidance on employer incentive programs, but goes further in widening its prohibition on incentive programs even when they are part of a broader compliance program.  The new rules explain that “it is a violation of paragraph (b)(1)(iv) for an employer to take adverse action against an employee for reporting a work-related injury or illness, whether or not such adverse action was part of an incentive program.”  OSHA’s interpretation prohibits all programs in which employees are denied a benefit on the basis of any injury or illness report.  For example, if an entire shift loses a safety bonus due to a single employee being injured.

However, an incentive program may make a reward contingent upon, for example, whether employees correctly follow legitimate safety rules, rather than whether they reported any injuries or illnesses.  OSHA further encourages incentive programs that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents, or ‘‘near misses.’’  Accordingly, employers should consider OSHA’s new interpretation when reassessing their incentive programs to ensure they are offering a benefit or reward based on the reporting of injuries or illnesses.  These types of programs could be adjusted to provide benefits on the basis of compliance with safety rules, or for attending safety trainings or persevering on safety quizzes.

These rules will take effect on August 10, 2016 as part of the required anti-retaliation policy.

New Retaliation Rules

In the Preamble to the anti-retaliation portion of the Final Rule, OSHA takes the position that its compliance officers can issue citations to employers who discipline workers for reporting injuries and illnesses when it believes that no legitimate workplace safety rule has been violated.  Accordingly, OSHA intends to give its compliance officers, who have no formal training in employment discrimination law, the authority to issue citations based on perceived retaliation in the workplace.  OSHA’s interpretation overturns the Agency’s longstanding statutory framework for retaliation complaints under Section 11(c) of the Act, under which employees must report allegations of retaliation, which are then investigated by specialized investigators.  Unlike a Section 11(c) complaint, in which an employee must file a retaliation claim with OSHA within 30 days, a compliance officer has 6 months to issue OSHA citations from the last day that the alleged violation occurred. The employee is not required to file any complaint.  Accordingly, the statute of limitations for retaliation claims could be significantly expanded.  We anticipate that the new interpretation will result in additional unfounded retaliation citations.

In its explanation to the Final Rule, the Agency also posits that employer policies requiring an employee to immediately report an injury or be disciplined may also be retaliatory.  OSHA believes that immediate-reporting policies will chill employees from reporting slow-developing or chronic injuries or illnesses, such as musculoskeletal disorders or poisoning from prolonged lead exposure.  According to OSHA, to be reasonable, a policy must allow for reporting within a reasonable time after the employee realized that he or she had suffered a work-related injury, rather than just immediately following the occurrence of an injury.

These rules also will take effect August 10, 2016.

Electronic Submission of Recordable Injury and Illness Data

Unlike the anti-retaliation provisions in the new Rule, OSHA spends minimal time interpreting the Electronic Submission requirements, which are supposedly the real purpose behind the new Rule.  The Electronic Submission portion of the Final Rule requires individual employer establishments with 250 or more employees to submit information electronically from their 2016 Form 300A by July 1, 2017.  These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Those establishments with 20-249 employees operating in what OSHA designates as “high hazard industries” (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

OSHA will require employers to submit all information from their logs, except information in the columns with employee names, employee addresses, health care professional names, and health care treatment facilities.  The final rules do not specify how this information will be submitted electronically.  Though we do not know that this will be a problem, due to privacy laws, employers should not submit information that identifies a specific employee or an employee’s medical information.  The electronic disclosure requirements will also apply to employers located in State Plan States.

Online Posting

OSHA will post this data on a publicly available website, which will be accessible by competitors, contractors, employees, and employee representatives.  The specifics of its new data disclosure portal are not explained in the regulations.

Conclusion

These new rules require certain employer policies to be reevaluated during the next two months, including the anti-retaliation policy and employee training.  Employers should take steps to ensure that they are in compliance with OSHA and local laws and regulations as quickly as possible.  Proactive steps in the face of this regulatory scrutiny now may allow the employer to avoid costly enforcement and litigation in the future.

By Brent I. Clark, Benjamin D. Briggs, and Craig B. Simonsen

iStock_000045960778_MediumSeyfarth Synopsis: Even in the face of a collective bargaining agreement the State of Arkansas reconsiders whether employees should be compensated for time they spend putting on and taking off required protective gear.

A divided Arkansas Supreme Court recently ruled that a food manufacturing company violated Arkansas state law by not paying production workers for time they spent putting on and taking off required protective gear. Gerber Prods. Co. v. Hewitt, et al., 2016 Ark. 222 (May 26, 2016).

We had blogged previously about donning and doffing cases. See If It Looks Like Pants And It Walks Like Pants… Supreme Court Considers Definition of “Clothes” In Section 203(o) Of The FLSA, where the question before the Court was whether the term “clothes” in section 203(o) of the Federal Labor Standards Act — which allows employers to exclude time spent by their employees “changing clothes . . . at the beginning or end of each workday” from compensable time pursuant to the terms of or a custom or practice under a collective bargaining agreement — includes protective clothing. Also, Try This On For Size: Seventh Circuit Rejects Factory Workers’ Donning and Doffing Claims Based On Expansive View Of The “Workday”, where the Seventh Circuit affirmed the dismissal of the workers’ donning and doffing claims, with Judge Posner taking a broad view of the definition of “workday” and the applicability of section 203(o).

Igniting this controversy was DOL Issues New Interpretation of “Clothes” Under FLSA and Expands What Constitutes Compensable Activity, where the DOL’s then new interpretation concluded that the FLSA exception for changing “clothes” did not include protective gear. Specifically, the interpretation states that the definition of “clothes” does not include “the modern-day protective equipment commonly donned and doffed by workers in today’s … industries where protective equipment is required by law, the employer, or the nature of the job.”

In this new state case the employees alleged that the company failed to compensate them for their time spent donning and doffing “clothing and protective gear, sanitizing clothing and equipment, washing their hands, and walking to and from their work stations.” The employees asserted that these activities were “necessary and indispensable” to their principal work, but the employees were not compensated.

In a 4-3 decision, the court affirmed the appellate court decision that the company was liable for approximately $3 million in unpaid overtime and interest to workers at its Arkansas plant.

The company had argued that the FLSA exception excused its failure to pay for donning and doffing time prior to 2013 because the union representing the workers signed collective bargaining agreements that made such time non-compensable. The Court, though, found that Arkansas Minimum Wage Act doesn’t incorporate the FLSA exception. Instead it ruled that the approximately 14 to 20 minutes that the workers spent daily putting on and taking off protective gear is compensable under the state law.

In the dissent, Justice Wood argued that the majority’s opinion will open the floodgates to litigation, and that it “undermines the collective-bargaining process and destroys any confidence employers and employees have in the enforceability of their agreements.” Particularly, the Justice noted that:

For this court to abrogate the collectively bargained agreements between Gerber and its employees, which have customarily and generally excluded donning and doffing from the rate of pay, and afford the employees a windfall, is unjustified, particularly when the agreements do not violate the minimum-wage requirement.

For employers, certainly those in Arkansas, this case indicates that it may be appropriate to re-examine collective bargaining agreements, company safety programs and policies, and corporate employees pay policies.

By Mark A. Lies, II and Adam R. Young

Seyfarth Synopsis: New OSHA final rule requires employer to submit data electronically, to be posted on the OSHA website.

On May 12, 2016 the Occupational Safety and Health Administration published the final rules requiring employers to submit injury and illness data electronically. 81 Fed. Reg. 29624.

OSHA will release this information publicly on its website, believing that its disclosure will shame employers into improving workplace safety.   The electronic data submission will also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials.  The final rule also includes new anti-retaliation and injury and illness reporting provisions. The final rule will take effect on January 1, 2017.

Electronic Submission of Injury and Illness Data

Employers with 250 or more employees must submit information electronically from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Establishments with 20-249 employees operating in what OSHA deems to be “high-risk industries” (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

OSHA will require employers to submit all information from their logs, save for columns with employee names, employee addresses, health care professional names, and health care treatment facilities. The rules do not specify how this information will be submitted electronically.  Though we do not know that this will be a problem, due to privacy laws, employers should not submit information that identifies a specific employee or an employee’s medical information.

Also, the electronic disclosure requirements will apply to employers located in State Plan States.

Online Posting

OSHA will then post this data on a publicly available website, which will be accessible by competitors, contractors, employees, and employee representatives. The specifics of its new data disclosure portal are not explained in the regulations.

Anti-Retaliation and Injury Reporting Procedure

The final rules re-state and enhance protections from retaliation for employees who report work-relate injuries or illnesses. Further, the regulations require that an employer establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

For additional advice on injury and illness reporting, contact your Seyfarth attorney.