OSHA Clarifies Its “Just Say No” to Automatic Post-Accident Drug-Testing Position

Posted in Workplace Safety & OSHA

How do employers reconcile automatic drug-testing required by workers’ compensation laws with the provisions of OSHA’s new Rule saying that automatic testing could be retaliatory? Following our recent blog on that issue, many of our readers had questions. They were not alone; in fact, there was so much debate that OSHA issued a Memorandum on October 19, 2016 clarifying its position and affirmatively stating that it  will not issue citations under the new Electronic Recordkeeping Rule for drug testing conducted under a state workers’ compensation law or other state or federal laws or regulations. Continue Reading

Refereeing FMLA Leave: When Making The Call To An Employee On FMLA Leave Is Out Of Bounds

Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves

Can I call an employee to answer a work-related question while he is out on FMLA leave recovering from surgery? If he wants to join a conference call, can I let him, or am I exposing the company to a claim that we “interfered” with his FMLA leave? Employers must pause for a time out to analyze the potential consequences before rushing in on an employee while he or she is on FMLA leave. Continue Reading

Just Say No to Automatic Post-Accident Drug-Testing?

Posted in Workplace Safety & OSHA

(**Edited as of October 26, 2017.** See updated blog.**)

Do you automatically drug-test after all work-related injuries or accidents? If so, you may want to consider changing your policy in light of the Occupational Safety and Health Administration’s new reporting Rule. The Rule was initially effective August 10, 2016, but enforcement has been delayed while a legal challenge works its way through the courts.

According to the new Rule, employer procedures for reporting work-related injuries and illnesses must be “reasonable” and must not “deter or discourage” employees from reporting injuries and illnesses. OSHA has taken the position that automatic, post-accident drug-testing policies deter and discourage employee reporting and, as a result, such policies will now face increased scrutiny. To be clear, the new Rule does not ban all employee drug-testing. Instead, it merely prohibits the use of drug-testing or the threat of drug-testing “as a form of adverse action against employees who report injuries or illnesses.” Also, the Rule does not ban drug-testing that is conducted for purposes of complying with federal, state or local laws or regulations.

You are probably wondering how you can maintain a drug-testing policy for work-related injuries without deterring or discouraging employee-reporting in violation of the new Rule. Perhaps recognizing that they are asking employers to walk a fine line, the commentary states:

[D]rug testing policies should 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. For example, 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. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

The commentary also notes that a drug-testing policy that is merely “perceived as punitive or embarrassing to the employee is likely to deter injury reporting” and thus will violate the new Rule.

So, what should employers do in light of the new Rule’s impact on post-accident or injury employee drug-testing? Employers may want to consider limiting post-accident or injury drug-testing to only those accidents or injuries where there is reason to believe that drugs or alcohol may have caused or contributed to the incident. In addition, employers may want to consider limiting the drug test in such a way so as to only test for drug use at or near the time of the incident. Finally, Employers should also make sure their policy clearly states that retaliation for reporting workplace injuries or accidents is strictly forbidden.

Takeaways from the EEOC’s Loss of Noteworthy Transgender Rights Case

Posted in Employment Discrimination Harassment & Retaliation

Since the EEOC first ruled in 2012 that discrimination based on transgender status constitutes sex discrimination in violation of Title VII, the EEOC has continued to expand protections for transgender employees, finding that intentional misuse of a transgender employee’s new name and pronoun may represent sex-based harassment and/or discrimination (decision available here); that an employer’s failure to revise its records pursuant to changes in gender identity may violate Title VII’s prohibition on sex discrimination (decision available here); and that an employer’s restrictions on a transgender employee’s ability to use a common restroom which corresponds to the employee’s gender identity constitutes unlawful disparate treatment (decision available here). The EEOC was recently dealt its first significant setback, however, in a federal court decision which reflects the growing tension between the anti-discrimination laws and religious liberty in the workplace. Continue Reading

Hope for Employers: Court Says Home Health Aides Can’t Bring Collective Action

Posted in Employment Litigation, Wage & Hour

Courts have been quick to allow one employee claiming to be due overtime to sue on behalf of others in the same job category by certifying a collective action, allowing that employee to represent the class and requiring the employer to provide contact information for others in the same job category.  However, in a case with potentially far reaching implications for the home care industry and elsewhere, one court decided to buck the trend and offer a glimmer of hope to employers that find themselves on the receiving end of a wage and hour lawsuit. Continue Reading

Employers Take Note, EEOC Issues Final Retaliation Guidance

Posted in Disability, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Employers should review their policies concerning retaliation and Americans with Disabilities Act (ADA) interference in light of the new Enforcement Guidance on Retaliation published by the EEOC this week.  As retaliation is now the most frequently alleged basis of discrimination, employers should take note.  Continue Reading

HHS Issues Final Non-Discrimination Rules for Healthcare Providers

Posted in Employee Benefits

Healthcare providers and others who receive federal financial assistance are now subject to new non-discrimination rules and notice requirements under the Affordable Care Act. The new regulation prohibits discrimination in healthcare programs and activities on the basis of race, color, national origin, age, disability and sex – including pregnancy, gender identity, and sex stereotyping. The new rule also encompasses the obligation to provide language assistance services free of charge to persons with limited English proficiency. Continue Reading