Workplace Policies and Processes

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

Seyfarth Synopsis:  The flu and cold season is now approaching. Employers face concerns about how to respond to highly infectious diseases when an employee reports such illness. Seasonal illnesses have the potential to infect employees and shut down operations because of employee absence due to illness. Employers must consider methods to keep their employees healthy and productive while not running into legal pitfalls.

With the return to winter weather, the cold and flu season is once again upon us.  This creates challenges for employers. Seasonal illnesses have the potential to spread throughout the workforce, and negatively impact operations.  Companies should create a plan to respond to infectious diseases, including how to limit the spread of the disease within the workplace without violating any applicable laws or regulations.  Employers should also encourage employees to get flu shots and practice good hygiene at work.  Please click on this article for more detailed guidance for employers on dealing with infectious diseases during flu and cold season.

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 or the Workplace Policies and Handbooks Team.

By Brent I. ClarkJames L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Last month at the 2018 National Safety Council (NSC) Congress the speakers noted that “safety programs shouldn’t end when employees walk out the door and get into a vehicle to drive.”  The session was presented by Karen Puckett, the Director for the Center for Environmental Excellence Division of Enterprise Development at the University of Texas at Arlington, and Lisa Robinson, Senior Program Manager for Employer Transportation Safety, for the NSC. 

National Highway Traffic Safety Administration statistics provided that in 2017 transportation deaths from crashes were the leading cause of workplace deaths in the USA.  These statistics are often lost on safety professionals because OSHA has no jurisdiction over transportation incidents on public roads.  Additionally, 2016 Bureau of Labor Statistics data show that 40% of employment fatalities were due to transportation incidents.

Puckett noted that the goal for the NSC’s program was to have considered the best practices for employees who drive for work.  This employment-based driving included not just fleet trucks and other vehicles, which are normally considered in company employee driving policies and training programs, but also any personally-owned employee vehicles and rental cars, vans, and other trucks that employees may use while doing company business.  Puckett explained that vehicles outside of the regular company fleet are often overlooked.

Puckett’s key takeaway was that the company’s personnel policy on driving and accident prevention and the related training materials and systems need to incorporate a recognition of these powerful statistics.  Employers need to build a workplace that promotes responsible driver behaviors, maintenance procedures and records, and effective training programs.

Robinson noted that the employer may also face considerable liability for any fatalities that come from employees driving on company business, however that is demanded by state law in the many states and localities the company may operate in.  Perhaps common sense behaviors for employee drivers to know are company policies prohibiting driving impaired by drugs or alcohol, driving while using a cellphone such as checking email, texting, or using the phone.  Many company policies do not incorporate these kinds of prohibitions.

Robinson concluded by illustrating numerous multi-million dollar jury verdicts and settlement agreements where employers were held responsible — even some where the employee was involved in activities or behaviors that some might reasonably suggest were not in the line of their employment.

For your further information, we have previously blogged on these related issues, including Drive Much? NIOSH Focus on Workplace Safety for Employees Who Drive for Their Job, President Declares “National Impaired Driving Prevention Month”, Asleep at the Wheel: Trucking Company’s Sleep Apnea Policy and Procedures Reviewed by Federal Courts, Impact of Driver Compensation on Commercial Motor Vehicle Safety, Eleventh Circuit Finds Insurance Carrier Responsible In Georgia For Harm Done by Intoxicated Employee, Employees Driving In Illinois? What Employers Need to Know, and Distracted Driving Leads to Employee Accidents and Fatalities.

Employer Takaway

For employers the key points from this session are that employee behavior on public roadways could have a big impact on the workplace.  The employer should have appropriate policies and training systems in place as part of a comprehensive safety program, with an aim to “improve your workplace driving safety culture.”

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) or Workplace Policies and Handbooks Teams.

By Brent I. ClarkJames L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: This week at the 2018 National Safety Council (NSC) Congress the speakers on this Executive Forum noted that “automation, wearables, augmented reality, virtual reality, drones, big data, machine learning, the Internet of Things – emerging technologies are now almost too numerous to keep track of.”  This Executive Forum offered an in-depth look at the tools and trends that organizations are beginning to adopt and provided some practical comments for EHS professionals who need to prepare themselves for a changing safety environment.  The session was presented by Michelle Garner-Janna, CSP, CPE, Executive Director – Corporate Health & Safety, at Cummins, and Lydia Boyd Campbell, MD, MPH, Chief Medical Officer, at IBM.

In her presentation Garner-Janna noted that Cummins is a global power leader with 60,000 employees spread around the world in 190 countries.  The company has worked to develop its health and safety programs for what she deemed “Industry 4.0”, advanced systems which incorporate (1) a secure network; (2) standard safety core systems; (3) Internet of Things (IoT) connectivity; (4) advanced technology mobile virtual reality (VR)/augmented reality (AR); and (5) big data advanced analytical systems.  An example of the Industry 4.0 at work is the company’s Powered Industrial Vehicle Positioning System, known as Essensium.  The Essensium System is an automated and augmented reality system used to move unmanned powered industrial trucks through warehouses in materials handling and storage functions.

Garner-Janna explained the Industry 4.0 systems being explored are exoskeletons and wearable technology.  The company is also currently trying out a VR system to provide health and safety training at a facility in China.

Campbell indicated that IBM has 380,000 employees.  Health and Safety personnel represent less than 6% of those employees onsite, and there is one H&S employee for every 1000 employees.  To compensate for reduced safety staffing, IBM’s H&S services group has been developing an integrated artificial intelligence system based on its “Watson” application.  With this system, the company has set-up a World-wide H&S call center in India that receives telephone calls and emails relating to safety and health concerns, translates the many languages, and routes the issues to “the right people” to work on resolution.  The Watson based system is also analysing the “tone” of callers’ voices to make sure that potentially high level of stress or problems are escalated appropriately.  The system is also now being reprogrammed to flag and handle personally sensitive data that employees may try to submit.

The emerging technologies and issues raised by speakers from Cummins and IBM demonstrate the changing nature of the safety environment and opportunities for safety professionals and employers to incorporate changing technology and big data into their approaches to protect employees.  These developments should be closely monitored by employers.

We have previously blogged on automation and issues related to the future of safety technology, including Future Enterprise – Workplace Safety Compliance Comes to the Forefront for Expanding Healthcare Industry, A Global Perspective on the Future of Wearable Technology, An Aging America and the Future of Paid Family Leave, and Robotics, Automation, and Employee Safety for the Future 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) or Workplace Policies and Handbooks Teams.

By Mark A. Lies, II,  Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing;  “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”

We previously blogged about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation.  OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.

  1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation

OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”  The Interpretation explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”

Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.

  1. OSHA Permits Consistent Post-Incident Drug Testing Policies

For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents.  The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:

  • “Random drug testing”;
  • “Drug testing unrelated to the reporting of a work-related injury or illness”;
  • “Drug testing under a state workers’ compensation law”;
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs.  Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.  For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested.  OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.

  1. OSHA Permits Safety Incentive Programs

The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs.  With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.”  The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month.  OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party.  The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.

However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting.  According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient.  Employers need to undertake their choice of additional “adequate precautions,” such as:

  • “An incentive program that rewards employees for identifying unsafe conditions in the workplace;”
  • “A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;” or
  • “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace.  A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires.  The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses.  Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.

For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.

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 TeamLabor & Employment, or the Workplace Policies and Handbooks Teams.

By Brent I. Clark, Kristin G. McGurn, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Health and Human Services (HHS), Office of the Surgeon General, has just released a Report on “Facing Addiction in America: The Surgeon General’s Spotlight on Opioids,” (Washington, DC: HHS, September 2018).

In the Report, Alex M. Azar, II, Secretary of the HHS, notes that “the opioid misuse and overdose crisis touches everyone in the United States.  In 2016, we lost more than 115 Americans to opioid overdose deaths each day, devastating families and communities across the country. Preliminary numbers in 2017 show that this number continues to increase with more than 131 opioid overdose deaths each day.  The effects of the opioid crisis are cumulative and costly for our society—an estimated $504 billion a year in 2015—placing burdens on families, workplaces, the health care system, states, and communities.”

The “evidence-based public health approach” described in the Report offers a way forward.  Its goal is to reduce the impact of the opioid crisis by addressing factors that contribute to opioid misuse and its consequences.  The Report offers that by adopting this approach—which seeks to improve the health, safety, and well-being of the entire population—the nation will have an opportunity to take effective steps to prevent and treat opioid misuse and opioid use disorder and reduce opioid overdose.  The evidence-based public health approach to the opioid crisis complements the broader healthcare ecosystem’s focus on social determinants of health and consumers’ behavioral conditions, which are widely viewed as critical to improving individual and national health outcomes over the long term.

Specifically, the Report offers suggestions for various key stakeholders, including, the healthcare profession and other employers generally:

Health Care Professionals and Professional Associations – As Employer and Provider:

  • Address substance use-related health issues with the same sensitivity and care as any other chronic health condition.
  • Support high-quality care for substance use disorders.
  • Follow the gold standard for opioid addiction treatment.
  • Follow the CDC Guideline for Prescribing Opioids for Chronic Pain.
  • When opioids are prescribed, assess for behavioral health risk factors to help inform treatment decisions, and collaborate with mental health providers.
  • Check the PDMP before prescribing opioids.
  • Refer patients to opioid treatment providers when necessary.
  • Become qualified to prescribe buprenorphine for the treatment of opioid use disorder.

Industry and Commerce:

  • Support youth substance use prevention.
  • Continue to collaborate with the federal initiative to reduce prescription opioid-and heroin-related overdose, death, and dependence.
  • Reduce work-related injury risks and other working conditions that may increase the risk for substance misuse.
  • Offer education, support and treatment benefits for workers affected by the opioid crisis.

As a resource for employers, the HHS also offers the Surgeon General Postcard “What Can You Do To Prevent Opioid Misuse?”  The card encourages employers to open up to conversations about the impact of addiction, to learn how to read the signs of struggle within the workforce, to ensure safe workplaces designed to minimize the need for pain prescriptions, and to be prepared to deal with a crisis.  Specifically, HHS counsels:

TALK ABOUT IT:  Opioids can be addictive and dangerous. We all should have a conversation about preventing drug misuse and overdose.

BE SAFE:  Only take opioid medications as prescribed. Always store in a secure place. Dispose of unused medication properly.

UNDERSTAND PAIN:  Treatments other than opioids are effective in managing pain and may have less risk for harm.  Talk with your healthcare provider about an individualized plan that is right for your pain.

KNOW ADDICTION:  Addiction is a chronic disease that changes the brain and alters decision-making. With the right treatment and supports, people do recover. There is hope.

BE PREPARED: Many opioid overdose deaths occur at home. Having naloxone, an opioid overdose reversing drug, could mean saving a life. Know where to get it and how to use it.

HHS also provides help resources and information and a hotline (1-800-662-HELP (4357).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Health Law Group, Workplace Safety and Health (OSHA/MSHA) TeamWorkplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

By James L. CurtisErin Dougherty Foley, Adam R. YoungMegan P. Toth, and Craig B. Simonsen

Seyfarth Synopsis: Employers must evaluate their safety protections for pregnant women and engage in the interactive process with employees to find reasonable accommodations.

Reproductive Health Hazards in the Workplace

Pregnant women work in hazardous jobs across the United States and in every sector of the economy.  While employers have a general duty to protect their employees from a condition known to cause harm, pregnant women may face unique risks and may be more susceptible to a range of serious workplace hazards.

The Occupational Safety and Health Administration (OSHA) notes that “exposure to reproductive hazards in the workplace is an increasing health concern.”  The National Institute for Occupational Safety and Health (NIOSH) has information resources on pregnancy and reproductive health hazards.  Ionizing radiation and lead, for instance, are known hazards to pregnant women and reproductive health.  A fetus might be more vulnerable to certain chemicals, particularly in the early stages of pregnancy when it is rapidly growing and the baby’s organs are developing.  Further, changes in a pregnant employee’s immune system, lung capacity, and even ligaments can increase their risk of injury or illness due to certain workplace hazards.  Employers must protect their employees (including more susceptible pregnant employees) and prevent exposures to these known hazards.

Involuntary Reassignments of Pregnant Women

This does not mean that employers should be reactive and involuntarily remove pregnant women from positions or duties in which they may be exposed to hazards, either to themselves or their developing baby, without the employee’s request and/or agreement. There are both federal and state laws that protect pregnant employees in the workplace, including Title VII to the Civil Rights Act of 1964, which prohibits discrimination based on sex and the federal Pregnancy Discrimination Act prohibits discrimination against employees “on the basis of pregnancy, childbirth, or related medical conditions.”  Moreover, the Americans with Disability Act (ADA), as well as state pregnancy accommodation laws, prohibit discrimination based on qualifying pregnancy related disabilities, and, under certain circumstances, prohibit employers from requiring employees to take accommodations to which they do not agree (i.e., a forced reassignment or relinquishment in job duties).

To the extent that an employer changes a job assignment or removes a woman from a desirable position because she is pregnant or may become pregnant, without a specific accommodation request, and in some cases, agreement from the employee, the employer could face a claim of gender and/or pregnancy discrimination.

Where there is no medically-documented basis (e.g. chemical or radiation hazard) that exposure might injure a fetus, a pregnant or potentially pregnant employee’s perceived susceptibility to a hazard probably would not be a legitimate reason to involuntarily demote, take away opportunities, or discharge a female employee. This, however, does not mean that employers should not offer pregnant workers the opportunity to avoid exposure that may be more harmful to them based on their pregnancy or that it should not be consider as an accommodation.  It simply means job assignment and removal of desirable duty should not be assumed or forced upon a worker because she is pregnant.

However, some potential chemical and radiation exposures may force an employer to make involuntary reassignments.  For example, low levels of lead or radiation may be safe for most employees, but may not be safe for women who are pregnant or may become pregnant.  Employers should inform employees of these hazards and their potential effects on reproductive health and fetal health, and request that the employee notify the employer if the employee is pregnant or is potentially pregnant.  Where there is a potential chemical or radiation hazard that might injure a fetus, an employer may need to propose a reassignment and overrule an employee if she rejects the accommodation. Specific regulations address some of these hazards with regard to pregnant women and mandate actions by the employer.  See https://www.osha.gov/SLTC/reproductivehazards/standards.html; and https://www.osha.gov/SLTC/radiationionizing/pregnantworkers.html.

Changes to Protective Equipment

Because of physical changes to the body during pregnancy which may necessitate new safety protections, employers must consider some workplace safety equipment changes to protect and accommodate pregnant employees.  Personal Protective Equipment, such as a harness for a personal fall arrest system, may no longer fit a pregnant employee or may have the potential to cause unnecessary harm to a worker or their developing baby.  Similarly, gloves, sleeves, helmets, or specialized boots may need to be replaced by the employer, with the assistance of the employee to ensure a proper fit.

Respirators present a trickier question.  If an employee passed a medical evaluation and fit test before becoming pregnant, she may present different medical issues with using a respirator and the respirator may no longer fit properly.  Employers should contact their medical professional to help coordinate any respirator use by pregnant employees.

Disclosure and Voluntary Accommodations

NIOSH recommends that a pregnant employee discuss possible job hazards with the employer and their doctor as soon as possible after learning about the pregnancy.  NIOSH suggests that many pregnant women adjust their job duties temporarily, or take extra steps to protect themselves.

The ADA, as well as various state laws, also requires employers provide accommodations to employees with qualifying pregnancy-related disabilities, upon becoming aware that employees are in need of such an accommodation.  Although employees should be expected to notify their employers of their need for a pregnancy-related accommodation, there are no “magic words” that trigger an employer’s obligation under the ADA. Therefore,  managers should be well trained to identify and properly inquire when a pregnancy-related accommodation may be needed, and how to appropriately engage in the interactive process, both under the ADA and any applicable state laws.

For example, if employers are concerned about exposures to pregnant employees, and the employee has reported that she is pregnant, the employer may ask the employee whether she needs any accommodations.  If the employee is interested in an accommodation, the employer should engage in the interactive process, including a robust dialogue with the employee to determine what reasonable accommodations may be agreeable.  If the employee can no longer perform the essential functions of their position, and there are no other reasonable accommodations available, reassignment to an open position, or if no open positions, a leave of absence, may be the only potential reasonable accommodations possible. However, it is important to be aware, an employee may not be forced to take a different position or a leave of absence as a reasonable accommodation, if there are other reasonable accommodations available.

More Information About Pregnancy In the Workplace

Pregnancy in the workplace presents a range of employment issues that confound human resources managers, in-house counsels, and safety managers.

Seyfarth Shaw has frequently blogged on other pregnancy and employment related issues and topics, like Governor Baker Signs Into Law the Massachusetts Pregnant Workers Fairness Act, Rescind that Job Offer After Her Notice of Pregnancy? Maybe Not, SCOTUS Rules on Pregnancy Accommodation Case, “A Telecommute Dispute” – What is a Reasonable Accommodation Under the ADA?, Supreme Court Debates Reach of Pregnancy Law, New Guidance From The EEOC Requires Employers To Provide Reasonable Accommodations Under The Pregnancy Discrimination Act, New York City and Philadelphia Pass New Pregnancy Accommodation Laws, Not Without Warning: The EEOC Continues To File Barrages Of Pregnancy Discrimination Lawsuits, Pregnancy Discrimination Update: Young v. United Parcel Service, Inc., and Retail Detail: Pregnancy Discrimination, Accommodations and Issues For Retailers.

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), Absence Management and Accommodations, or Workplace Policies and Handbooks Teams.

By Brent I. Clark and Craig B. Simonsen

Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its results from a study conducted in 2016 and 2017 that looked at safety programs developed to prevent motor vehicle crashes.

The study included four focus groups conducted with thirty-three managers of employees that drive for work. The managers represented small businesses across four motor vehicle user groups: (1) first responders, (2) oil and gas workers, (3) light-vehicle drivers (e.g., workers who operate passenger vehicles for a variety of work purposes, such as salespeople, home health care workers, realtors, and food delivery workers), and (4) truck drivers.

NIOSH, in its Science Blog, related that vehicle crashes were a leading cause of workplace fatalities, with “1,252 deaths of vehicle drivers and passengers on public roads in 2016. In 2013, on-the-job crashes cost employers over $25 billion and led to 155,000 lost work days.”

The study found that the managers of truck and light vehicle drivers noted a range of minimal  approaches to safety, such as mandatory vehicle inspections. Of particular note on the topic of the effectiveness of training is that managers indicated that safety materials needed to be designed that take into account the limited time that they and their drivers can devote to safety training. “Drivers’ varied work schedules and intense workload limit opportunities for group discussions about roadway safety. Managers said they and their drivers prefer concise, highly visual, and interactive communication products, such as short videos and simulations.”

NIOSH concluded that despite the human and financial costs of crashes, safety programs developed to prevent motor vehicle crashes are unlikely to work unless they are designed with the employers’ needs and constraints in mind. “This is particularly true among smaller and midsize employers, which need additional resources and knowledge to be successful.”

For employers, it is important to have safety programs in place that protect company employees. Employers can be sure that, given a workplace accident, agency inspectors may well be reviewing the employer’s policy documents and training materials, and will likely interview the injured employee about her training and understanding of the materials.

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 Frederick T. Smith, Jennifer L. Mora, and Christopher W. Kelleher

Seyfarth Synopsis: On November 13, 2017, the Department of Transportation amended its drug testing program regulation which, among other things, adds certain semi-synthetic opioids to its drug testing panel.

The Department of Transportation (DOT) has published its long-awaited final rule amending its drug testing program for DOT-regulated employers. The new rule comes in the wake of the Department of Health and Human Services (HHS) revised “Mandatory Guidelines for Federal Workplace Drug Testing Programs” which became effective on October 1, 2017.

The new DOT rule makes the following significant changes:

  • Adding four semi-synthetic opioids (hydrocodone, oxycodone, hydromorphone, and oxymorphone) to the drug testing panel, which is “intended to help address the nation-wide epidemic of opioid abuse” and create safer conditions for transportation industries and the public;
  • Adding methylenedioxyamphetamine (MDA) as an initial test analyte because, in addition to being considered a drug of abuse, it is a metabolite of methylenedioxyethylamphetaime (MDEA) and methylenedioxymethamphetamine (“MDMA”), and such testing potentially acts as a deterrent;
  • Removing testing for MDEA from the existing drug testing panel;
  • Removing the requirement for employers and consortium/third party administrators (C/TPAs) to submit blind specimens in order to relieve unnecessary burdens on employers, C/TPAs, and other parties; and
  • Adding three “fatal flaws” to the list of when a laboratory would reject a specimen and modifying the “shy bladder” process so that the collector will discard certain questionable specimens.

The new rule goes into effect on January 1, 2018. Employers who comply with DOT standards when drug testing should modify their drug testing policies accordingly. Employers that are not subject to DOT requirements, but comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs also should consider whether to modify their drug testing policies to comply with the new rules and guidelines.

If you have questions about the new regulations or employee drug testing in general, please contact the authors, your Seyfarth attorney, or any member of the  Labor & Employment or Workplace Policies and Handbooks Teams.

By Christopher W. Kelleher, Rashal G. Baz, James L. Curtis, and Brent I. Clark,

Seyfarth Synopsis:  On October 11, 2017, the Chicago City Council passed an ordinance that will require Chicago hotels to provide certain staff with “panic buttons” and develop enhanced anti-sexual harassment policies.

In an effort to protect hotel employees from sexual harassment and other guest-misconduct, Chicago has passed the Hotel Workers Sexual Harassment Ordinance, which requires Chicago hotels to provide employees who work alone in guest rooms or bathrooms with “a panic button or notification device” which can be used to call for help if the employee “reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence.”

According to the Ordinance, “a panic button or notification device” is a portable device designed to be used in emergency situations to summon hotel security or other appropriate hotel staff to the employee’s location.  The Ordinance does not require hotels to use a specific type of device, as long as it warns proper hotel personnel and it comes at no cost to the employee.

The Ordinance also requires hotels to develop and distribute a written policy to protect employees against sexual harassment.  Specifically, the policy must: (1) encourage employees to promptly report sexual misconduct by guests; (2) describe procedures for handling the reported misconduct; (3) instruct the complaining employee to stop work and leave the dangerous area; (4) offer the employee temporary work assignments; (5) provide the employee with paid time off to make a complaint or testify as a witness; (6) inform employees of additional protections; and (7) include an anti-retaliation provision.  The policy must be conspicuously posted in English, Spanish, and Polish.

The Ordinance authorizes fines of $250 – $500 for each day a violation continues, and two or more violations within any 12-month period may result in license suspension or revocation.  Hotels will have until July 1, 2018 to implement “panic button” systems, but must comply with the Ordinance’s other provisions (i.e. develop and distribute an updated anti-sexual harassment policy) within 60 days of the law’s publication, which we can expect any day now.

Notably, the Occupational Safety and Health Administration (OSHA) uses the General Duty Clause to enforce workplace issues against employers.  OSHA can rely on industry practices to support a claim that a “recognized hazard” exists.  It is possible that OSHA will use the new Ordinance and employer compliance in Chicago as a basis to require that other hotel employers should also have “panic buttons.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team or the Workplace Safety and Health (OSHA/MSHA) Team.

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

shutterstock_171692768Seyfarth Synopsis:  OSHA has recently updated and published its enforcement procedures for occupational exposure to workplace violence.  The procedures explain and lay out the elements of an OSHA General Duty Clause violation, as well as NIOSH’s guidance for determining the potential for workplace violence.

OSHA defines “workplace violence” as an act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.  It ranges from threats and verbal abuse to physical assaults, or homicide.  It can involve employees, clients, customers, and visitors.  In addition, OSHA asserts that nearly two million American workers report being victims of workplace violence each year.  According to OSHA: “unfortunately, many more cases go unreported.”

To assist the Agency and its Certified Safety and Health Official (CSHO) inspectors in assessing and citing instances of workplace violence, OSHA has recently released its updated Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence, OSHA Directive CPL 02-01-058 (January 10, 2017).  The Directive was last updated in 2011.

The Directive lays out the elements of a General Duty Clause violation, including:

  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  • The hazard was recognized;
  • The hazard was causing or was likely to cause death or serious physical harm; and
  • There was a feasible and useful method to correct the hazard.

The Directive also lists “known risk factors”, which “shall be considered in determining whether to inspect a worksite, [but which] none of them would individually trigger an inspection.”  The risk factors are: contact with the public; exchange of money; delivery of passengers, goods, or services; having a mobile workplace such as a taxicab; working with persons in healthcare, social service, or criminal justice settings; working alone or in small numbers; working late at night or during early morning hours; working in high-crime areas; guarding valuable property or possessions; working in community-based settings, such as drug rehabilitation centers and group homes.

How Can Workplace Violence Hazards be Reduced?

OSHA indicates that “in most workplaces where risk factors can be identified,” the risk of assault can be prevented or minimized if employers take appropriate precautions.  It suggests that one of the best protections is a zero-tolerance policy toward workplace violence.  The policy, OSHA advises, should cover all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel.

By assessing worksites, employers can identify methods for reducing the likelihood of incidents occurring.  “OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence in both the private sector and federal workplaces.”

Employers seeking to address this topic in the company’s employee handbook or policy documents should do so carefully, as in the event of an incident, this will be one of the first company documents requested and received by an inspector.

On the enforcement side, we note that OSHA continues to issue citations under the General Duty Clause for alleged workplace violence hazards.  However, all of these citations follow one or more actual instances of violence at work.  OSHA appears to be unable to gather sufficient facts during an inspection to support a citation in advance of an actual instance of workplace violence — even though OSHA’s citations allege the employer should have addressed the hazard in advance.

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 or the Workplace Counseling & Solutions Team.