By James L. CurtisKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  A railcar cleaning company and its executive officers were recently charged in a 22-count indictment with conspiracy, violating worker safety standards resulting in worker deaths, violating the Resource Conservation and Recovery Act (RCRA), and for submitting false documents to a federal agency.

Nebraska Railcar Cleaning Services LLC (NRCS) employees sent workers in to railcars to scrape and remove various commodities from tanker cars, including gasoline, ethanol, petroleum by-products, pesticides, herbicides, and food grade products.  Two of the company’s workers were killed and a third was injured when the contents of a railcar ignited while being cleaned.  According to the indictment, the company, NRCS and its owners and executives, allegedly failed to implement worker safety standards and then tried to cover that up during an Occupational Safety and Health Administration (OSHA) inspection.  The defendants also allegedly mishandled hazardous wastes removed from rail tanker cars during the cleaning process.

OSHA requires employers to test air in confined spaces such as rail tanker cars for hazardous gases prior to allowing employees to enter the confined workspace, and to provide employees exposed to certain chemicals with respirators for which they must be assessed and fit tested.  EPA requires facilities like NRCS to ensure that hazardous wastes generated are properly treated and disposed of.

The indictment alleges that after a 2013 inspection of NRCS, the company represented that NRCS had been testing for hazardous wastes, including benzene, since July 2014.  After OSHA returned to NRCS in March 2015 to conduct a follow-up inspection and was turned away, documents were “created” and submitted to OSHA to “falsely show” that NRCS had been purchasing equipment to test the contents of railcars for benzene and had taken other required safety precautions.  In addition, “during inspections by the Nebraska Department of Environmental Quality and the U.S. Environmental Protection Agency in 2013 and 2014 respectively, NRCS was informed that it was required to test its wastes to determine if they were hazardous in order to properly dispose of them, rather than send all untested waste to a landfill not permitted to receive hazardous waste.”  The indictment alleges that was not done before April 2015.

In April 2015, the contents of a railcar ignited while being cleaned by NRCS employees. Two employees were killed and a third was injured. Two days after the explosion, NRCS had three railcars tested to assess whether their contents were hazardous, and two were determined to be hazardous.

Employer Takeaways

This indictment presents a good example of what not to do when dealing with OSHA and environmental agency inspectors.  First, if the employer represents that it is implementing certain safety measures — do it!  Secondly, the case serves as a reminder of the importance of providing complete and accurate submittals to government entities.  A deliberate falsification can have serious ramifications, both by way of civil penalties and criminal prosecution.  As everyone has learned through countless infamous cases, it’s not the crime but the cover-up that will really come back to bite the employer.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) 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 Mark A. Lies, II and Patrick D. Joyce

Take a look around you. There’s a good chance you work at a facility that uses a Powered Industrial Truck (PIT).

OSHA defines a PIT as “any mobile power-propelled truck used to carry, push, pull, lift, stack or tier materials.” Most people think of PITs as forklifts.  Though forklifts come in many shapes and sizes, they are all regulated under OSHA’s PIT standard, 29 CFR § 1910.178. PITs also include manlifts, scissor lifts, boom lifts and motorized hand trucks.  Though this article will often refer to forklifts, the requirements apply to all PITs.  Earth moving and over the road haulage trucks are not included in the definition of PIT. Equipment that was designed to move earth but has been modified to accept forks are also not included.

Forklifts present many potential hazards: a pedestrian can be struck by a forklift; a load can fall off a forklift onto a person or the operator; the forklift can fall off a ledge or tip if driven on an uneven surface; a forklift can fall between a loading dock and a truck trailer. Frequently, an accident involving a forklift results in serious injury or a fatality.  To address these hazards, OSHA sets out a comprehensive set of standards for training, maintenance, and operation of forklifts.  OSHA also requires initial certification and recertification of forklift drivers every three years.  If forklift certifications or maintenance records are falsified, OSHA has a history of seeking criminal sanctions to enforce its standards.

This article will briefly outline OSHA’s requirements for use of forklifts in the workplace and will discuss a case where an employer falsified forklift maintenance records, resulting in criminal sanctions.

OSHA’S TRAINING AND CERTIFICATION REQUIREMENTS

OSHA’s Powered Industrial Trucks Standard requires that “The employer shall ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely…” The Standard also requires that operators receive training in the topics which are applicable to the safe operation of the truck in the employer’s workplace. Employees must be trained separately for each different type of forklift they will be using, but they do not need to complete separate training for the same type of forklift made by a different manufacturer.

The Standard further requires an employer to develop a written program to train all employees who will be required and authorized to operate forklifts as to the hazards of such equipment. Employers must conduct classroom-type training and actually observe the employee operating the equipment under the physical conditions at the workplace, such as aisles, ramps, and loading docks.  The employer must provide a certificate stating the employee has completed the training.  The employee must be retrained and recertified every three years, at a minimum, or after an accident or “near miss” which resulted from an unsafe act.

If contract or temporary workers who are not employed by the host employer are required to operate forklifts, the host employer must take steps to assure that these individuals are properly trained before they are permitted to operate forklifts at the facility. At a minimum, the host employer is responsible for the safety of its own employees. If the operation of forklifts could endanger the host employer’s employees, the host employer would be obligated to prevent such danger by satisfying itself that all forklift operators have been properly trained. This does not mean that a host employer is required to train forklift drivers who are not its employees. It must, however, ensure that such individuals have been trained in accordance with the PIT standard before they are permitted to operate forklifts at its workplace.

Because OSHA takes training requirements so seriously, it is a good practice that all contract and temporary employees be trained and certified by the host employer before being allowed to operate a forklift, even if they received training and certification from another employer. In addition, the host employer should obtain the training and certification documentation from the contract or temporary staffing service company to confirm that it exists and is current if it intends to rely upon it and before allowing the contract or temporary worker to operate the PIT.

The PIT Standard does not specify how long training certifications must be retained after the initial certification or the recertification required every three years or after a “near miss”. Some employers retain the training certifications for the duration of employment for each employee.

If OSHA can establish that training was not provided or that the employees did not understand it because the training is in writing and the employee is illiterate or the training was conducted verbally in a language the employee could not understand, the agency may claim that the certifications are false, resulting in citations or potential criminal liability for the individual who signed the certification as well as the employer.

MAINTENANCE AND INSPECTION REQUIREMENTS

OSHA prohibits operation of forklifts if they are not in safe operating condition. It is recommended that employers conduct an inspection of each forklift at the beginning of each shift and after any maintenance has been done or an accident has occurred.  At a minimum, forklifts are required to be inspected daily.  While not required, the employer should consider developing and using a written daily checklist to confirm that the operator conducted the daily PIT inspection.  The checklists should be reviewed periodically to assure that they are being utilized.  In addition, is a best practice to maintain inspection and maintenance records for at least the duration of the time they own the specific forklift.  For a detailed inspection checklist for a PIT see OSHA’s checklist.

The PIT Standard lists a number of conditions under which a forklift must be removed from service. If the operator notes these conditions while driving, the operator must stop, park the vehicle and get assistance:

  • If the forklift is not in safe operating condition.
  • If the forklift emits hazardous sparks or flames from the exhaust system.
  • If the temperature of any part of any forklift is found to be in excess of its normal operating temperature.
  • If the forklift has a leak in the fuel system.

(Source: https://www.osha.gov/SLTC/etools/pit/operations/servicing.html)

If there is a question regarding the safe operation of a forklift, the vehicle must be immediately removed from service until it can be thoroughly inspected and any repairs are made. Similar to falsification of employee training certifications, any falsification of inspection or maintenance records can result in citation by OSHA and possible criminal liability.

The employer must also consider whether the forklift is properly rated to be operated in certain workplace environments, for example, is it rated to operate in an area where flammable or combustible materials are being utilized or stored, to insure that the forklift does not create a source of ignition for flammable or combustible materials.

OPERATOR FITNESS AND DISCIPLINE

As employers should know, there is a duty to enforce compliance with the PIT regulation with discipline for violations, including unsafe operation, failure to inspect, etc. This discipline needs to be in writing in order to remove a non-compliant operator and also to be able to establish the unavoidable employee misconduct defense to a citation. Finally, the employer must monitor whether an operator is fit to operate a PIT because of physical conditions, including vision, hearing and motor skills if there is objective evidence that these conditions are rendering the operator unfit to operate the equipment in a safe manner. In making this determination, the employer must consider the requirements of the Americans with Disabilities Act regarding assessment of the operator’s ability to perform the essential functions of the job.

In addition, the employer needs to be observant as to whether the operator is impaired by drugs or alcohol. This can be done by training supervisors on the objective signs of drug or alcohol impairment including speech, coordination, bodily odors, etc. If they are observed, the operator should be taken out of service and the employer should consider sending the employee to be tested for drugs or alcohol. Further, if there has been an accident involving personal injury or property damage, the employer should consider a post-accident drug and alcohol test. In either event, the employer should consider establishing a written drug and alcohol testing policy to be able to ensure that the operator is not impaired and creating a safety hazard.

FORKLIFT HAZARDS CREATE CRIMINAL LIABILITY

As previously mentioned, OSHA will seek criminal prosecution if an employer falsifies employee training certifications, inspection records, or maintenance records. In United States v. Atlantic States Cast Iron Pipe Company, No. 03-852, 2007 WL 2282514 (D.N.J. Aug. 2, 2007) aff’d sub nom. United States v. Maury, 695 F.3d 227 (3d Cir. 2012), the conviction of an employer on multiple criminal counts involving EPA and OSHA violations demonstrates how an employer can be exposed to this liability for a conspiracy to defraud OSHA during an inspection.

In Atlantic States, the employer was indicted for defrauding OSHA by altering existing conditions at the employer’s foundry to conceal safety hazards to which employees were exposed.  In March 2000, an employee died after he was run over by the employer’s forklift.  In the indictment, the government charged that the employer ignored hazards involving forklifts, including brake problems and allowing untrained employees to operate the forklifts.

In addition, after the fatality, the employer took action to deliberately conceal what had occurred from OSHA (perhaps to avoid OSHA citations). The concealment was alleged to include:

repairing the forklift brakes after the accident but shortly before OSHA commenced its inspection (after a workplace fatality OSHA must be notified within eight (8) hours and the accident scene cannot be disturbed until the OSHA inspector has an opportunity to commence the inspection and releases the scene).

Conducting a demonstration of the forklift for the compliance officer that was misleading (since the brakes had been surreptitiously repaired after the accident but before the inspector arrived).

Instructing employees to provide false information to the inspector as to how the fatality occurred.

Creating a false written inspection report after the accident which indicated that the forklift had been inspected prior to the accident and was in “perfect operating condition.”

As a result of its inspection, OSHA identified employees who were willing to testify against the employer as to the foregoing actions, resulting in felony convictions. It is important to note that if the employer had not engaged in these post-accident wrongdoings and OSHA had decided to proceed with its limited criminal prosecution authority under the Act, the employer’s liability would have likely been limited to a misdemeanor; the concealment resulted in much greater liability than the underlying violation.

CONCLUSIONS AND RECOMMENDATIONS

The Powered Industrial Truck Standard is not the most complex or the longest of the OSHA Standards. However, the requirements contained in the PIT standard are often the subject of OSHA Citations and can expose an employer to potential criminal liability if they are not followed.  If your company owns a forklift, or any other type of PIT, take a look at your program to ensure all of OSHA’s requirements are satisfied: training and certification of employees, inspection and maintenance of PITs, and accurate recordkeeping.  OSHA is not shy about making sure employers follow the PIT Standard; stay one step ahead of OSHA and make sure you are following the rules.

 

 

By Brent I. Clark, James L. Curtis, Adam R. Young, and Craig B. Simonsen

iStock_000003352393_LargeIn a review of an Occupational Safety & Health Review Commission (OSHRC) decision, the U.S. Court of Appeals for the Eighth Circuit ruled this week to vacate a $490,000 penalty for failure to employ machine guards to prevent the ejection of a workpiece in a catastrophic breakdown of a lathe. Perez v. Loren Cook Company, No. 13-1310, __ F.3rd __ (8th Cir. October 13, 2015).

In its decision, the Court agreed with the OSHRC and its Administrative Law Judge (ALJ), which concluded that 29 CFR § 1910.212(a)(1) focuses on “point-of-contact risks and risks associated with the routine operation of lathes, such as flakes and sparks,” but the rule does not contemplate the catastrophic failure of a lathe that would result in a workpiece being thrown out of the lathe. The ALJ vacated the Occupational Safety & Health Administration’s (OSHA’s) citation issued against Loren Cook Company, and the OSHRC adopted the unmodified recommendation of the ALJ. Disagreeing, the Secretary of Labor petitioned the Court for review of the OSHRC order arguing that the Court should defer to OSHA’s interpretation of the standard. The Court denied the Secretary’s petition for review and affirmed the OSHRC’s order.

In its discussion, the Court noted that “we generally afford substantial deference to the Secretary’s interpretation of his own regulations.” “But deference to the Secretary’s interpretation is only appropriate when both the interpretation itself and the manner in which the Secretary announces the interpretation are reasonable.” The Court relied on and cited to Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 157-58 (1991). The Court cited Supreme Court precedent that deference to an Agency’s interpretation is inappropriate when the interpretation is “‘plainly erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)). Also, deference is inappropriate “when there is reason to suspect that the Agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on the matter in question.’” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (quoting Auer, 519 U.S. at 462).

The Court noted that in Perez v. Loren Cook Company, OSHA’s position conflicted with prior interpretations, and evidenced a position as nothing more than a litigating position, or using the interpretation as “a post hoc rationalization for a prior action.”

The Court also had its own precedent for parameters under which it should afford an Agency’s interpretation deference:

[D]eference is due when an agency has developed its interpretation contemporaneously with the regulation, when the agency has consistently applied the regulation over time, and when the agency’s interpretation is the result of thorough and reasoned consideration.” Solis v. Summit Contractors, Inc., 558 F.3d 815, 823 (8th Cir. 2009) (quoting Advanta USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 2003)).

As such, the Court concluded that having determined that the Secretary’s interpretation of section 1910.212(a)(1) was not entitled to deference, and found that the section did not cover the conduct for which the Secretary cited Loren Cook.

OSHA Compliance Safety and Health Officers (CSHOs) and Area Directors often apply their own interpretations of the OSHA standards. This Eighth Circuit decision is a clear reminder that there are limits to OSHA’s ability to adopt new interpretations of its standards.

bogBy Mark A. Lies, II and Craig B. Simonsen

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplaces.  Two recent cases illustrate the competing liabilities that employers face in their decision-making as to how to respond to workplace violence.

In one case, decided by the United States Court of Appeals for the Ninth Circuit, the employer, a superalloys casting company, chose to fire an openly hostile employee making death threats to avoid potential injury to its employees, and face the prospect of costly litigation including an Americans with Disabilities Act (ADA) lawsuit.

In the other case, decided by an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, a healthcare company did not perceive or protect a social service coordinator, who was tragically fatally stabbed outside the client’s home, from the hazard of workplace violence.

Employer Response to Violence Upheld

In the first case the plaintiff appealed from the Federal District Court’s grant of summary judgment in favor of his former employer on his claim of discrimination in violation of Oregon disability law. Mayo v, PCC Structurals, Inc., No. 13-35643 (9th Cir. July 28, 2015) (Mayo).

The District Court concluded that because the plaintiff, Timothy Mayo, had threatened to kill his co-workers, including his supervisor, he was not a “qualified individual” under section 659A.112 of the Oregon Revised Statutes, which is Oregon’s counterpart to the Americans with Disabilities Act (ADA). The District Court indicated that in following the decisions of numerous other Circuit Courts, Mayo was no longer a “qualified individual” once he made his “violent threats.” Because Mayo was not a qualified individual in the eyes of the court, he was not “entitled to protection under the ADA and Oregon’s disability discrimination statute.”

In its discussion affirming the lower court decision, the Circuit Court of Appeals found that even if the plaintiff were disabled (which it assumed was true for the appeal), “he cannot show that he was qualified at the time of his discharge. An essential function of almost every job is the ability to appropriately handle stress and interact with others.” For instance, in a frightening recitation of the court record, the plaintiff told a co-worker that he “‘fe[lt] like coming down [to work] with a shotgun an[d] blowing off’ the heads of the supervisor and another manager. The co-worker need not worry, Mayo explained, because she would not be working the shift when the killing would occur.”

After these statements were reported to company management a timely investigation was conducted. Written statements were obtained from co-employees regarding the threats. When the plaintiff was asked by management if he planned to carry out these threats, the plaintiff responded that “he couldn’t guarantee he wouldn’t do that.” The company management immediately suspended the plaintiff’s employment, barred him from company property, and notified the police.

After the plaintiff’s suspension and being interviewed by the police, he was voluntarily admitted to the hospital because he was deemed to pose a danger to himself and to others. He remained in custody for six days, and then took a leave under the Oregon Family Leave Act (OFLA) and the Family and Medical Leave Act (FMLA) for two months. Near the end of his leave period, a treating psychologist cleared him to return to work, writing that he was not a “violent person,” but recommended a new supervisor assignment. While the parties dispute the timing, the employer decided to terminate the plaintiff during his medical leave. The company determined that his threats were of such severity that he was unqualified to work with any supervisors or co-employees and that it could not expose its employees to potential workplace injury.

In response the plaintiff brought this case, seeking damages. The District Court granted the employer’s motion for summary judgment, and the Circuit Court of Appeals affirmed.

Employer Response to Threatening Conduct Found Inadequate

In the second case, an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, Dennis L. Phillips, issued an opinion that a healthcare company did not protect a social service coordinator, who was fatally stabbed outside her client’s home in December 2012. Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124 (June 22, 2015) (Integra).

The employer in this case, Integra Health Management, Inc. (Integra), provided mental and physical health assessments and coordinated healthcare/case management services for insureds of insurance companies. One of its employees was a 25 year old newly- hired Service Coordinator (SC) with about three months on the job. The employee had no prior experience in the community health or social worker industries. The employee did not have an office at the company but instead worked out of her home. She also used her computer, a phone, and car to travel to client’s homes.

In October 2012, the employee planned to drive out into the field to a client’s apartment, to make an unscheduled visit. The client was a diagnosed schizophrenic, who was on the employee’s list of clients, known as “members,” for which she was responsible. The client had a history of violent behavior, and had been convicted of violent crimes and incarcerated for many years. The employee was not advised about the client’s history of mental illness or violent behavior when he was assigned to her. The employee had made several attempts to contact the client by telephone, which were unsuccessful.

As planned, the employee visited the client in October 2012 by going to his house unannounced. She introduced herself and the company and arranged a return visit to conduct an initial assessment. The employee reported in her progress note report for that day that during their conversation, the client “said a few things that made [her] uncomfortable, [she] asked [the client] to be respectful or she would not be able to work with him.” She also documented in her progress note report that “[b]ecause of this situation, [she] is not comfortable being inside alone with [the client] and will either sit outside to complete assessment or ask another SC to accompany her.”

A number of subsequent meetings and conversations occurred between the employee and the client including further notes in the employee’s progress note report regarding her concerns. In December 2012, the employee was fatally stabbed by the client during her visit to his home.

Following the incident the Occupational Safety and Health Administration (OSHA) issued two citations to Integra Health Management, Inc., claiming a violation of the General Duty Clause, section 5(a)(1), of the OSH Act, and a violation of OSHA’s injury reporting standard. Specifically, the General Duty Clause citation alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior.

The Judge determined that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee’s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions.

What are the Legal Ramifications that Employers Should Consider?

In Mayo the employer took steps to protect its employees from threatened harm by conducting a timely investigation, suspending and eventually terminating the aggressive and threatening employee. The company’s actions forced it to respond to discrimination claims under the ADA that initially were filed in state court, and removed to federal court. While the employer prevailed in the District Court and Circuit Court, the company undoubtedly spent considerable sums defending the suits. While this litigation was very time consuming and expensive, the employer avoided a tragic outcome.

Unfortunately in Integra the employer did not respond to or take any actions to address any sense of fear or anxiety mentioned in the employee’s client visit notes. A serious OSHA violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The Judge found that the healthcare company’s approach to safety was inadequate, and that the company should have taken precautions to prevent injury by developing a meaningful written policy, hiring and training its employees appropriately and responding to complaints in a timely manner. While the company only faced an OSHA fine of $7,000 in proposed penalties for the General Duty Clause violation, it sustained the tragic loss of an employee, as well as a worker’s compensation death suit.

Recent OSHA Guidance

The Mayo decision may give some sense of security to those employers that make hard choices for what it believes are the right reasons, that is, for employee safety. But choices are not always easy, and the resulting actions can be costly.

The Integra decision is timely in view of another recent OSHA action relating to the healthcare industry. Recently OSHA released an “Inspection Guidance for Inpatient Healthcare Settings,” that will focus its inspectors attention to workplace violence, musculoskeletal disorders, bloodborne pathogens, tuberculosis, and slips, trips, and falls. The Guidance focuses on hazards that were included in OSHA’s recently-concluded National Emphasis Program on Nursing and Residential Care Facilities, CPL 03-00-016.

Particularly, the Guidance indicates that workplace violence is defined as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. OSHA notes that workplace violence is a recognized hazard in hospitals, and in nursing and residential care facilities. According to OSHA, in the healthcare and social assistance sector, 13 percent of the injuries and illnesses were the result of violence. “Fifteen percent of the days-away-from-work cases for nursing assistants were the result of violence.” Accordingly, workplace violence will be evaluated in every inpatient healthcare OSHA inspection.

While the inspection Guidance is for “inpatient” healthcare settings, employers in other industries can be certain that they will also be inspected by the same OSHA inspectors as healthcare workplace violence incidents occur, regardless of the setting, including non-healthcare workplaces as well. The Guidance was effective immediately. The Guidance noted that “because these hazards are nationwide, State Plans are expected to follow the guidance.”

Healthcare employers should take heed of this healthcare industry OSHA decision and the related Guidance. Special attention should be taken to update your policies, procedures, and training systems to include these topics in order to be inspection ready.

Recommendations

Against this potential liability scenario, an employer must develop an effective written workplace violence policy which must be communicated to all employees if it hopes to have any defense against these potential claims and to prevent a tragic incident. At a minimum, the written workplace violence prevention policy should include the following elements:

  • Stated management commitment to protecting employees against the hazards of workplace violence, including both physical acts and verbal threats;
  • Statement that the employer has a “zero tolerance” policy toward threats or acts of violence and will take appropriate disciplinary action against employees who engage in such conduct;
  • Identify means and methods for employees to notify the employer of perceived threats of violent acts in a confidential manner;
  • Establish a means to promptly investigate all such threats or violent acts;
  • Develop consistent, firm discipline for violations of the policy;
  • Provide training for managers and employees to identify signs and symptoms of employee behavior which may predict potential violence (erratic behavior; employee comments regarding homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; physical evidence of employee abuse of alcohol or drug use) which should be reported immediately to the employer;
  • Establish a team of qualified individuals (e.g., human resources; risk managers; legal; medical; security) either within the company or readily available third parties, to respond to a potential or actual incident; and
  • Consider establishing an Employee Assistance Plan (EAP) to provide assistance to employees who may be experiencing mental or emotional stress before an act of violence occurs.

If you have any questions regarding this article, please contact any of the authors, or your Seyfarth attorney.