Workplace Policies and Processes

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.

By Erin Dougherty Foley, Patrick D. Joyce, and Craig B. Simonsen

Couple driving drunk with the carSeyfarth Synopsis:  In a recent Eleventh Circuit opinion, the Court found that the insurance carrier was responsible, under Georgia law, for the harm caused by an intoxicated employee’s vehicle usage. Great American Alliance Ins. Co. v. Anderson, No. 15-12540 (11th Cir., February 8, 2017)..

In this case, the Court explained, the appellant was involved in a car accident with an intoxicated driver who was driving a company vehicle with his employer’s permission. “After a jury found the driver liable and awarded the appellant one million dollars, the employer’s insurance company, the appellee, filed this suit for a declaration that the driver was not a permissive user – and thus not covered under the applicable insurance policies – because he broke internal company policies.”

The Court found that the Georgia Supreme Court has held that inquiries into permissive use should extend only to whether a vehicle is used for an approved purpose. Citing to Strickland v. Georgia Cas. & Sur. Co., 224 Ga. 487, 162 S.E.2d 421 (Ga. 1968).  “A subsequent decision by the Georgia Court of Appeals, however, held that a company’s internal rules can govern the scope of permissive use, and that violations thereof can negate an individual’s status as an insured.” See Barfield v. Royal Ins. Co. of Am., 228 Ga. App. 841, 492 S.E.2d 688 (Ga. Ct. App. 1997).  Because the District Court followed Barfield, and thereby narrowed the scope of permissive use beyond what was permitted by Strickland, The Court found that it erred, and reversed and remanded.

Strickland, the Eleventh Circuit found, holds that the only inquiry relevant to determining the scope of a generic permissive use clause is whether a vehicle is used for an approved purpose. See 224 Ga. at 492, 162 S.E.2d at 425. In that case the Georgia Supreme Court found that where a vehicle is used for an approved purpose, an employee’s violations of explicit company policies do not foreclose status as a permissive user. See id. at 492, 162 S.E.2d at 425. “We conclude that the “actual use” contemplated and intended by the policy refers only to the purpose to be served and not the operation of the vehicle.”  The Court concluded that the purpose test set forth in Strickland controlled the inquiry into permissive use. Because the District Court extended its analysis further (to include Barfield), it was reversed.

This opinion, for Georgia employers especially, but for employers generally as well, raises important concerns about employee vehicle usage. Employer liability for employee vehicle usage can come from numerous circumstances, but most generally including injuries or accidents caused by employees acting within the scope of their employment.

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

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

BLACKLISTEDSeyfarth Synopsis: By a vote of 49-48 on March 6, 2017, by the U.S. Senate, both Houses of Congress have now moved to rescind the regulations issued pursuant to President Obama’s Executive Order 13678, entitled Fair Pay and Safe Workplaces but popularly referred to as the “Blacklisting” Order, which required government contractors to report all potential labor violations as well as disclose the basis of pay to employees working on government contracts.  If President Trump signs the rescission resolution, as he is expected to do, the regulations will be rescinded. Under the Congressional Review Act, if a regulation is subject to rescission, the Executive Branch cannot reissue the same or similar regulation absent legislative authorization.

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

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 Workplace Safety and Health (OSHA/MSHA) Team, or the Workplace Policies and Handbooks Team.

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

Smart technology setSeyfarth 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.