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Posts Tagged ‘OSHA’

COVID-19: What Medical Inquiries Can Employers Make?

Posted on: March 16th, 2020

By: Jennifer Markowski

Last week, Brad Adler, addressed FAQ’s (and Answers) for Employers Dealing with the Coronavirus, COVID-19. Subsequent to that article, on March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a pandemic. Consequently, employers should follow the Equal Employment Opportunity Commission’s (“EEOC”) pandemic guidance “Pandemic Preparedness in the Workplace and the ADA,” which details what medical inquiries and testing are permissible in the workplace in light of the existing pandemic.

The Americans with Disabilities Act (“ADA”) prohibits employers from making disability-related inquiries and/or requiring employees to submit to medical examinations unless they are job-related and consistent with business necessity.  Now that COVID-19 has been declared a pandemic, according to the EEOC guidance, employers can do the following without running afoul of the ADA:

  • Send employees home who are exhibiting COVID-19 symptoms;
  • Ask employees who call-in sick whether they are experiencing fever or chills and a cough or sore throat (symptoms of COVID-19);
  • Measure employee temperatures, if COVID-19 is widespread in the community as defined by state or local health ordinances or the CDC;
  • Ask where employees have traveled;
  • Ask why employees have not reported to work (this is always permissible);
  • Implement measures to prevent infection, such as wearing masks or requiring teleworking.

As always, information obtained about an employee’s medical illness must be kept confidential and separate from the employee’s personnel file and can only be shared with individuals on a need to know basis.  Additionally, if an employee receives ADA accommodations in the workplace and is then required to telework, those same accommodations should be provided for in the telework space, unless doing so would create an undue hardship.

The Occupational Safety and Health Organization (“OSHA”) has also issued guidance for pandemic preparedness. Those guidelines are accessible here.

In addition, FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

OSHA Issues Guidance on the Usage of Headphones on Construction Sites

Posted on: February 13th, 2020

By: Erin Lamb

In late 2019, OSHA released a letter of interpretation in response to employers’ questions regarding the rapidly increasing use of headphones on construction sites. The convenience, simplicity, and decrease in price of wireless headphones have made them wildly popular. Manufacturers and advertisers have taken advantage of that popularity to advertise wireless headphones as having features appealing to workers, such as volume-limiting capabilities and noise-canceling capabilities, and even promoted them as ear protection devices. These products, however, also have the ability to play music, podcasts, videos – anything that can be watched or listened to via a Bluetooth device.

To better appeal to workers, some manufacturers have gone as far as to advertise their products as “OSHA approved”. Employers subsequently sought clarification and guidance on whether use of headphones on job sites is prohibited by OSHA regulations.

In its response, OSHA noted there is no regulation that prohibits the use of headphones on a construction site. Employers are required by 29 CFR 1926.52 to provide employees subject to sound levels exceeding these limits with ear protective devices. No noise exposure can exceed those limits.

However, OSHA did not end its answer there. OSHA noted that while headphone usage may be “permissible at managerial discretion,” such usage may “create” or “augment” other hazards, and provided specific examples of anticipated hazards. The letter of interpretation noted that struck-by hazards are one of the four leading causes of death in construction. Employers are responsible for ensuring that employees are not exposed to struck-by hazards. OSHA cautioned that listening to music can mask environmental sounds that need to be heard, including sounds of equipment and machinery at use and in movement, vehicle traffic, and warning signals. OSHA further noted that the body does not register, certify, approve, or endorse any products, and there are no “OSHA approved” products of any kind.

Employers must be keenly aware that employee exposure to potential hazards is heightened by distraction and/or dulling of the senses (like music headphones or even noise-regulating/canceling headphones) and must regulate usage accordingly. Employers will be liable for a violation of the general duty clause if headphones-wearing employees are exposed to the hazards outlined in the letter. Employers should evaluate their worksites and consider whether issuing a policy that bans headphone usage is appropriate.

If you have any questions or would like more information, please contact Erin Lamb at [email protected].

OSHA Developments Favorable for Employers

Posted on: October 24th, 2018

By: Amy Bender

Two recent OSHA developments signal good news for employers.

The first relates to the scope of OSHA inspections of an employer’s workplace. In a recent federal court case, after an employee of a poultry processing plant was injured at work, the employer reported the incident to OSHA as required. It also provided 3 years of its injury and illness (“OSHA 300”) logs and permitted OSHA to inspect the particular hazards relating to the injury. OSHA then sought a warrant to inspect the employer’s entire facility based on this information as well as the fact that poultry processing plants were included in OSHA’s Regional Emphasis Program, which had identified hazards of particular concern to that industry. After the warrant was issued, the employer objected. The court agreed with the employer and quashed the warrant, finding a lack of reasonable suspicion to support such a broad inspection and a lack of evidence that OSHA selected the employer for inspection applying neutral criteria. Although the permissible scope of an OSHA inspection will depend on the individual circumstances of each situation, this case can give employers some comfort that OSHA’s authority is not unfettered. The case may be read here: USA v. Mar-Jac Poultry, Inc., Case No. 16-17745  (11th Cir. Oct. 9, 2018).

The other development relates to OSHA’s stance on post-accident drug testing and workplace safety programs. As we previously reported here, OSHA published a final rule in 2016 prohibiting mandatory, across-the-board post-accident drug testing as being discriminatory against employees based on their injury or illness reporting and limited testing to situations where employee drug use was a likely factor in the incident. The final rule also required employers to develop employee injury and illness reporting requirements that meet certain criteria, including informing employees of their right to make such reports without fear of retaliation. The final rule left employers scrambling to revamp their long-standing and well-meaning policies and procedures relating to workplace safety. Fortunately, OSHA now has issued a memorandum clarifying that it does not prohibit workplace safety incentive programs or post-incident drug testing. Such programs are impermissible only to the extent they are intended to penalize employees for reporting a workplace injury or illness. The memorandum provides additional guidance on what will be considered acceptable reporting policies and drug-testing procedures. The memorandum is available here.

If you have any questions or would like more information, please contact Amy Bender at [email protected].

Retaliation Claims Keep Expanding: Flight Attendants Bring OSHA Claim for Reporting “Security Threat”

Posted on: January 9th, 2015

By: Amy Combs Bender


A few days ago, thirteen flight attendants filed a complaint with the federal Occupational Safety and Health Administration (“OSHA”) against their former employer, United Airlines, claiming they were terminated in retaliation for reporting a security and safety threat. In July 2014, prior to a flight from San Francisco to Hong Kong, the flight attendants learned of what they claim were “threatening words” and “menacing images” that had been drawn on the plane’s tail cone, which was accessible only by employees with certain security clearance and only with special equipment. Specifically, the words “BYE BYE” were written next to two faces, one smiling and the other with a “frowning or devilish” expression.

The flight attendants expressed that they were concerned and uncomfortable about the situation and felt unsafe. After determining to proceed with the flight, United issued the flight attendants a direct order to work the flight. In light of the facts that the flight attendants were concerned about the nature of the message and images and their perceived threat to the safety of the crew and passengers; it was not known who made them, when, or where; they had not been discovered during prior security checks; the flight attendants were not informed of the true nature of the situation for some time after the message and images were discovered; the captain had been describing the situation as a maintenance issue and later referred to the graffiti as a joke; a full security sweep of the entire plane was not conducted; and the TSA’s recent increase in security measures for international flights, all thirteen attendants refused the direct order. Each was terminated for insubordination for refusing to comply with the direct order.

The flight attendants allege in their OSHA complaint that their terminations violated the anti-retaliation provisions of a federal aviation law. They argue that they engaged in “protected activity” when they made statements to United regarding the security threat to the aircraft and refused to fly the aircraft with the security threat unresolved. The flight attendants have requested that OSHA investigate their claims, issue a determination that their terminations were retaliatory, and reinstate them to their jobs. The complaint currently is pending with OSHA. (A picture of the graffiti and a copy of the complete complaint are available on the website of the law firm representing the flight attendants.)

Although this case deals with a specific law applicable only to the airline industry, it is a good lesson to all employers of the increasing frequency of retaliation and whistleblower claims and the need to review internal policies and procedures for reporting and responding to such claims. A cause of action for retaliation is available under all of the major federal employment laws, including:

  • Title VII of the Civil Rights Act (prohibiting retaliation for opposing or participating in an investigation or proceeding regarding discrimination based on race, color, religion, sex, or national origin);
  • the Americans with Disabilities Act (prohibiting retaliation for opposing or participating in an investigation or proceeding regarding discrimination based on an actual, perceived, or record of disability);
  • the Age Discrimination in Employment Act (prohibiting retaliation for opposing or participating in an investigation or proceeding regarding discrimination based on age);
  • the Fair Labor Standards Act (prohibiting retaliation for filing a complaint or instituting or testifying in a proceeding alleging a minimum wage or overtime violation);
  • the Family and Medical Leave Act (prohibiting retaliation for exercising a right regarding taking leave for protected family or medical reasons, opposing or complaining about any unlawful practice under the statute, or filing a charge, instituting a proceeding, or giving information or testimony about an alleged violation); and
  • the Occupational Safety and Health Act (prohibiting retaliation for filing a complaint, instituting or testifying in a proceeding, or exercising a right regarding safe and healthful working conditions).

In addition, under the Sarbanes-Oxley Act, employees of publicly traded companies or companies that are required to file certain reports with the Securities and Exchange Commission are protected from retaliation for reporting alleged mail, wire, bank, or securities fraud; violation of SEC rules and regulations; or violation of federal law relating to fraud against shareholders. That Act also provides that employees of any employer may assert a retaliation claim for providing truthful information to a law enforcement officer about the commission or possible commission of a federal offense. Moreover, public employees may assert Constitutional retaliation claims. Numerous other statutes permit retaliation actions in various contexts and business industries.

Furthermore, for the past few years, retaliation has been the most frequently asserted category of claim in Charges of Discrimination filed with the Equal Employment Opportunity Commission.

Employers are advised to review their employee handbooks or personnel policies to ensure they include a comprehensive procedure for reporting complaints of discrimination or harassment under any category protected by law as well as a prohibition on retaliation for reporting or participating in the investigation of any such complaint. Employers also should ensure that this prohibition is enforced on a practical level by training their managers and supervisors not to target or treat less favorably employees who have made or assisted with a complaint on account of their protected conduct.