“OSHA Clarifies Limits on Post-Accident Drug Testing and Safety Incentive Programs” Published on October 27, 2016

October 27th, 2016

Published on October 27, 2016

The Occupational Safety and Health Administration (OSHA) recently released a memorandum explaining “in more detail” two provisions added to the recordkeeping regulation: Section 1904.35(b)(1)(i) requiring “employers to have a reasonable procedure for employees to report work-related injuries and illnesses”; and Section 1904.35(b)(1)(iv) prohibiting retaliation for reporting work-related injuries and illnesses.

As we have previously reported, OSHA identified post-accident drug testing and safety incentive plans as programs that may result in impermissible retaliation against employees who report injuries when the amendments to the recordkeeping regulation were issued on May 12, 2016.

Section 1904.35(b)(1)(i)—“Reasonable” System for Reporting

Section 1904.35(b)(1)(i) requires employers to implement a “reasonable” system for employees to use for reporting work-related injuries and illnesses. The guidance adds little to the explanation included when OSHA issued the original amendments to the recordkeeping regulation. OSHA reiterates that employers must give employees a “reasonable timeframe after the employee has realized that he or she has suffered a recordable work-related injury or illness and in a reasonable manner.” A procedure requiring employees to report “as soon as practicable after realizing” they are injured is “reasonable,” but it would not be “reasonable” to discipline employees for “failing to report before they realize they have a work-related injury” or “for failing to report ‘immediately’ when they are incapacitated because of the injury or illness.”

Section 1904.35(b)(1)(iv)—Retaliation

When it issued the final amendments to the regulation, OSHA identified three policies that “can be used to retaliate against workers for reporting work-related injuries or illnesses and therefore discourage or deter accurate recordkeeping: disciplinary policies, post-accident drug testing policies, and employee incentive programs.” Section 1910.35(b)(1)(iv) is not “prohibiting these kinds of policies categorically” and “does not impose any new obligations or restrictions on employers.” Instead, the provision simply “gives OSHA another mechanism to address conduct that has always been unlawful” under Section 11(c) (the whistleblower provision) of the Occupational Safety and Health Act (OSH Act): “retaliating against employees for reporting work-related injuries or illnesses.”

To prove a violation of Section 1904.35(b)(1)(iv), OSHA must show:

  1. “The employee reported a work-related injury or illness”;
  2. “The employer took adverse action”— “action that would deter a reasonable employee from accurately reporting a work-related injury or illness”; and
  3. “The employer took the adverse action because the employee reported a work-related injury or illness.”

“OSHA’s ultimate burden is to prove that the employer took the adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason,” which will be a “fact-specific inquiry.”

When Will Post-Accident Drug Testing Be Deemed Retaliatory?

Post-accident drug and alcohol testing is not prohibited. Rather, Section 1904.35(b)(1)(iv) prohibits post-accident testing only when the employee reports an injury and a test is conducted “without an objectively reasonable basis.” The “central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed.” The factors OSHA will consider will include whether “other [non-injured] employees involved in the incident” are tested and whether the employer “has a heightened interest in determining if drug use could have contributed to the injury or illness due [to] the hazardousness of the work being performed.”

OSHA provides an example: A crane accident injures several employees working nearby but not the operator. Given the facts, “there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition.” Testing all of the involved employees is “appropriate,” while testing only the injured employees “would likely violate section 1904.35(b)(1)(iv).” Testing an employee “whose injury could not possibly have been caused by drug use”—such as a repetitive motion strain—“would likely not be objectively reasonable.

Finally, OSHA clarifies a troubling issue regarding the type and timing of the test. OSHA originally stated that the test must measure impairment at the time of the injury. OSHA now says it “will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.” “OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.” In light of this language, employers can discipline employees based on positive drug tests for marijuana and other drugs where the test is not capable of measuring the level of impairment at the time of the injury.

When Will Safety Incentive Programs Be Deemed Retaliatory?

Safety incentive programs only violate Section 1904.35(b)(1)(iv) to the extent a benefit—“such as a cash prize drawing or other substantial award”—is taken away because an employee reported an injury or illness. “Penalizing an employee simply because the employee reported a work-related injury or illness without regard to the circumstances surrounding the injury or illness is not objectively reasonable and therefore not a legitimate business reason for taking adverse action against the employee.”

OSHA offers the following example of a program that would likely violate Section 1904.35(b)(1)(iv): A raffle for a $500 gift card at the end of “each month in which no employee sustains an injury that requires the employee to miss work.” If the raffle is canceled “simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violate section 1904.35(b)(1)(iv) because it would constitute an adverse action against an employee simply for reporting a work-related injury.”

What Does It Mean For Employers?

The guidance offers several key takeaways for employers. First, although OSHA does not say it specifically, the guidance seems to confirm that safety incentive programs and post-accident drug testing policies potentially violate the anti-retaliation provision (Section 1904.35(b)(1)(iv)) rather than the “reasonable” reporting provision (Section 1904.35(b)(1)(i)). This means that the mere existence of a program is not enough to violate the regulation even though it may deter employees from reporting. Instead, OSHA must show a specific instance of retaliation against an employee.

For example, an employer may maintain a post-accident drug testing policy that requires drug testing whenever an employee requires medical treatment. Although an employee may decide not to report an injury for fear of a drug test, the program—in a vacuum—does not violate the regulation. Rather, a violation exists if OSHA can show that an employee: 1) reported an injury; 2) was drug-tested with no reasonable basis, such as following a report of a repetitive motion strain; and 3) the employer had no legitimate business reason for conducting the test and administered it solely because the employee reported the injury. Thus, employers may maintain their post-accident testing policies but may have to exercise discretion in administering them. The same analysis would apply to a safety incentive program that takes away a benefit when too many injuries occur—the program is permissible as long as it is administered so that it does not retaliate against individual employees who report work-related injuries or illnesses.

Second, OSHA did not specifically address the types of safety incentive programs described in the August 14, 2014 memorandum concerning companies in the Voluntary Protection Program (VPP). The VPP memorandum describes “blended” programs that include a component based on meeting injury and illness rate goals. Given that OSHA did not address these types of programs, the assumption is that they do not violate the anti-retaliation provisions in Section 1904.35(b)(1)(iv).

Third, OSHA provides no guidance on when withholding a particular benefit constitutes adverse action. Employers may schedule events when a facility or team of employees meets a certain injury and illness rate goal. OSHA clearly believes that withholding the opportunity to win $500 in a raffle is significant enough to constitute adverse action but declines to address celebrations of safety milestones through pizza parties and the like.

Finally, OSHA did not address—at least not explicitly—programs based on more significant injuries and illnesses. A safety incentive program based upon avoiding fatal injuries for some period of time does not violate the anti-retaliation provisions because an employee does not “report” a fatality. The same may be said for certain types of significant injuries. An employee who breaks his or her leg and leaves the facility in an ambulance has not reported the injury—the injury is evident.

In contrast, an employee who contracts tuberculosis from an exposure at work or a repetitive motion strain that requires surgery could elect to take time off and receive treatment without reporting the injury or illness as work-related. If the employee chooses to report the injury or illness and loses a benefit, such as the opportunity to win $500 in the raffle, then the employer has potentially violated Section 1904.35(b)(1)(iv). The adverse action must be based on an employee “report” of an injury. Programs based on injuries or illnesses resulting in lost time may or may not pass muster depending upon whether the employee actually “reports” the injury that leads to the loss of a benefit.

Source: Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Cook County, IL Passed an Earned Sick Leave Law

October 24th, 2016

Cook County, IL Passed an Earned Sick Leave Law

On October 5, 2016, the Cook County, Illinois Board of Commissioners passed the “Earned Sick Leave Ordinance” (the “Ordinance”), the second such law in the state. For employers with a place of business within Cook County, that employ at least one Covered Employee—meaning any employee who, in any particular two-week period, performs at least two hours of work for an employer while physically present within the geographic boundaries of Cook County—the Ordinance is scheduled to become effective on July 1, 2017. The Cook County Commission on Human Rights (the “Agency”) will enforce the Ordinance.

  • Which Employers Are Covered Under the Ordinance?

The Ordinance defines “employer” as any individual, partnership, association, corporation, limited liability company, business trust, or any person or group of persons that gainfully employs at least one Covered Employee with a place of business within Cook County. Excluded from employers are: (1) the U.S. government or government owned corporations; (2) Indian tribes or a corporations owned by an Indian tribe; (3) the Chicago government or any agency or department thereof; and (4) local government. The Ordinance does not differentiate between employers based on size.

The Ordinance expressly states that if employers have an existing policy that grants Covered Employees with paid time off in an amount and a manner that meets the requirements for Earned Sick Leave (“ESL”) under the Ordinance, the Employer is not required to provide additional paid leave. However, if the Employer’s existing policy awards the full amount of paid time off immediately as opposed to using an accrual model, the Employer must award each Covered Employee 40 hours of paid time off within one calendar year of his or her date of eligibility.

  • Which Employees Are Covered by the Ordinance?

The Ordinance defines “Covered Employee” broadly. Specifically, as explained above, a Covered Employee means any employee who, in any particular two-week period, performs at least two hours of work for an Employer while physically present within the geographic boundaries of Cook County. A Covered Employee must also work at least 80 hours for an Employer within any 120-day period to be eligible for ESL. Although the Ordinance is silent as to whether part-time or temporary employees qualify, presumably if they meet the requirements, they would be covered. Unlike other municipal ordinances that expressly exclude independent contractors, the Ordinance is silent as to whether they are covered.

  • How Much Sick Time Can Employees Accrue, Use, and Carryover?

Employees begin earning sick leave at the commencement of employment or on July 1, 2017, whichever is later. Employers must allow a Covered Employee to begin using ESL no later than 180 calendar days following the commencement of his or her employment. However, the law is silent on whether this 180-day waiting period applies to employees who work for the Employer on July 1, 2017.

Employers must allow Covered Employees to accrue ESL at least as fast as one hour for every 40 hours worked. ESL shall accrue only in hourly increments; fractional accruals are prohibited. Covered Employees who are exempt from overtime requirements are assumed to work a 40 hour workweek (unless the employee’s normal work week is less than 40 hours, in which case ESL accrues based on that employee’s normal work week).

The Ordinance provides a cap of 40 hours of ESL accruable in any 12-month period (although the law does not prohibit Employers from setting a higher limit). The 12-month period is calculated from the date the Covered Employee begins to accrue ESL. At the end of a Covered Employee’s 12-month accrual period, he or she must be allowed to carry over to the following 12-month accrual period half of his or her unused accrued ESL—up to a maximum of 20 hours.

However, and like the Chicago sick leave ordinance, the Cook County law adds a unique twist: if an Employer is subject to the Family Medical Leave Act (“FMLA”), the Employer’s Covered Employees are allowed to carry over up to 40 hours of additional unused accrued ESL, to be used exclusively for FMLA eligible purposes. As such, under the Ordinance, a Covered Employee working for an Employer who is not subject to the FMLA can have, at most, 60 hours of combined accrued and carried over ESL. Covered Employees working for an Employer who is subject to the FMLA can have, at most, 100 hours of combined accrued and carried over ESL in a 12-month period.

However, the Ordinance also states that a Covered Employee is not entitled to use more than 40 hours of ESL in a 12-month period, unless the Employer sets a higher limit. The only exception to this is if a Covered Employee carries over 40 hours of FMLA leave and uses that leave, the employee is entitled to use up to 20 additional hours of ESL in the same 12-month period, unless the Employer sets a higher limit.

The Ordinance is silent on front-loading.

  • Under What Circumstances May Employees Use Sick Leave?

A Covered Employee may use ESL when: (a) he or she is ill or injured, or for the purpose of receiving medical care, treatment, diagnosis or preventative medical care; (b) a member of his or her family is ill or injured, or to care for a family member receiving medical care, treatment, diagnosis or preventative medical care; (c) he or she or a member of his or her family is the victim of domestic violence, sexual violence, or stalking; or (d) his or her business is closed due to a public health emergency or to care for a child whose school or place of care is closed due to a public health emergency.

The Ordinance defines “family member” to include a Covered Employee’s child, legal guardian or ward, spouse, domestic partner, parent, spouse or domestic partner’s parent, sibling, grandparent, grandchild, or any other individual related by blood or whose close association with the Covered Employee is the equivalent of a family relationship.

Employers may set a reasonable minimum increment for use of ESL as long as it does not exceed four hours per day.

  • What is the Rate of Pay for Sick Leave?

Employers must compensate an employee who uses ESL at the same rate and with the same benefits, including health care benefits, that the Covered Employee regularly earns during hours worked. The law is silent on whether this includes tips or commissions.

  • What Notice Must Employees Provide When Using a Sick Day?

The Ordinance provides that if use of ESL is reasonably foreseeable, an Employer may require up to seven (7) days’ notice before leave is taken. If the need for ESL is not reasonably foreseeable, an Employer may require a Covered Employee to give notice as soon as is practicable on the day the ESL is to be taken by notifying the Employer via phone, e-mail, or text message. However, in order to require Covered Employees to provide notification, the Employer must notify Covered Employees in writing of the policy and the policy cannot be unreasonably burdensome.

  • Can Employers Require Employees to Provide a Medical or Other Documentation?

Employers can require certification that the employee used ESL for a permitted purpose only when the employee is absent for more than three consecutive workdays. The Ordinance sets out the types of documents that satisfy this requirement.  Nothing in the Ordinance prohibits Employers from taking disciplinary action against a Covered Employee who uses ESL for other purposes than those permitted, although policing may be difficult with this constraint.

  • What Notice Must Employers Provide?

Employers must post a notice in a conspicuous place at each facility that is located within Cook County where any Covered Employee works advising of the right to ESL. In addition, at the commencement of employment, every Employer must provide a Covered Employee with a written notice advising of his or her rights to ESL. The Agency will prepare and make available model notices that satisfy these requirements.

  • What Records Must Employers Maintain?

The Ordinance is silent regarding what records an employer must maintain. Illinois employers generally have recordkeeping requirements regarding wages, hours worked, overtime, etc., and thus best practice would be to include recordkeeping for ESL as well. We will advise you on any updates.

  • What Can Employers Not Do?

Employers cannot: (a) require a Covered Employee taking ESL to search for or find a replacement worker; (b) determine how much ESL a Covered Employee needs to use; (c) require medical documentation to specify the nature of the injury, illness, or condition; or (d) discriminate or retaliate against any Covered Employee for exercising or attempting in good faith to exercise any right under the Ordinance, including but not limited to using an absence-control policy to count ESL as an absence that triggers discipline, discharge, demotion, suspension or other adverse action.

  • Must Unused Sick Time Be Paid Upon Employment Separation?

The Ordinance does not require Employers to cash out an employee’s accrued, unused ESL upon termination, resignation, retirement or other separation from employment.

  • What Should Employers Do Now?

Cook County employers should take steps now to ensure that they will be able to achieve full compliance with the Ordinance by the July 1, 2017 effective date. These are among the actions to consider:

  • Review existing policies and procedures immediately to ensure that they meet at least the minimum requirements for Covered Employees or develop a new paid sick leave policy that complies with the Ordinance.
  • Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking ESL.
  • Prepare to comply with the Ordinance’s posting and notification requirements and monitor the Agency’s website for template notices and other guidance and updates on the Ordinance.
  • Train supervisory and managerial employees, as well as HR, on the Ordinance’s requirements.

 

Superior Staffing will continue to monitor the Cook Count Ordinance and keep our valued clients updated.

Labor & Employment Client Alert | October 17, 2016

October 20th, 2016

On October 5, 2016, the Cook County Board of Commissioners enacted an ordinance that will require employers throughout Cook County, Illinois to provide paid sick leave to employees (the “Cook County Ordinance”). The Cook County Ordinance adopts the same terms set as forth in the Chicago Paid Sick Leave Ordinance, which was passed by the Chicago City Council in June, and goes into effect on the same day: July 1, 2017. Once the ordinances take effect, employees throughout Cook County will accrue 1 hour of paid sick leave for every 40 hours worked. Employees will be able to accrue up to 5 days of paid sick leave per year, unless the employer’s policies provide for a greater benefit. Employers throughout Cook County (including in Chicago) should update their sick leave policies prior to July 1, 2017, the effective date of the Cook County and Chicago Paid Sick Leave Ordinances, to ensure compliance with these new requirements.

 

Employers in Chicago Take Note: Impending City Ordinance to Require Paid Sick Leave

April 19, 2016

Chicago is likely to become the next municipality to require employers to provide paid sick leave. On April 13, 2016, the Chicago City Council proposed an amendment to the Chicago Minimum Wage Ordinance that would require employers to provide a minimum of five days per year of paid sick leave to virtually all employees. The proposed ordinance has strong support among Chicago aldermen and is likely to become law this year. Thus, employers with operations in the city should be aware of the following major provisions and requirements of the proposed ordinance that are widely expected to take effect.

Who Is Affected by the Paid Sick Leave Ordinance?

The proposed ordinance applies broadly to all employees who work at least 80 hours within any 120-day period for an employer that maintains a business facility within the city of Chicago or that is subject to city licensing requirements, regardless of the number of persons the employer employs. Put another way, the paid sick leave requirement will apply to most employees in the city of Chicago.

How Much Paid Sick Leave Do Employees Accrue?

Under the proposed ordinance, employees would accrue paid sick leave at a rate of one hour for every 40 hours worked, beginning on their first day of employment or on the effective date of the ordinance (currently slated as July 1, 2017). Employees who are exempt from overtime requirements are assumed to work 40 hours each week, unless their normal workweek is less than 40 hours, in which case paid sick leave accrues based on the employee’s normal work week.

Employees accrue up to 40 hours of paid sick leave per 12-month period (which is measured from the date the employee begins to accrue paid sick leave), unless the employer sets a higher accrual limit. In addition, employees can carry over half of their unused accrued sick leave at the conclusion of the 12-month accrual period, up to a maximum of 20 hours. If the employer is subject to the Family and Medical Leave Act (FMLA), employees can carry over up to 40 hours of unused accrued paid sick leave to use exclusively for FMLA-eligible purposes. However, if an employee carries over and uses those 40 hours toward FMLA leave, he or she may use no more than an additional 20 hours of accrued paid sick leave in the same 12-month period.

When May an Employee Use Paid Sick Leave?

Employers should know that approved “paid sick leave” reasons under the proposed ordinance are quite broad. Namely, an employee may use paid sick leave not only for purposes of recovering from an injury or receiving medical care, but also when:

• A member of the employee’s family is ill or injured, or to care for a family member receiving medical care, similar to the FMLA’s eligibility criteria;
• The employee or a member of the employee’s family is a victim of domestic violence;
• The employee’s place of business is closed due to a public health emergency, or the employee needs to care for his or her child whose school has been closed due to a public health emergency.

Employees may determine how much paid sick leave is necessary in a given day, provided that the employer may set a reasonable minimum increment not to exceed 4 hours per day.

In addition, employers may require employees to provide up to 7-days notice when the need for leave is foreseeable. When the need for leave is not foreseeable, employers only may require employees to provide notice as soon as practicable.

What Is the Rate of Pay for Paid Sick Leave?

Employers are required to compensate employees for paid sick leave at the same rate and with the same benefits, including health benefits, as the employee earned immediately prior to taking paid sick leave.

However – and significantly in Illinois, where employers must pay any earned, unused vacation to employees upon the termination of their employment – under the proposed ordinance employers will not be required to pay out unused, accrued paid sick leave to employees upon termination, unless an applicable collective bargaining agreement provides otherwise.

Are Any Employees Excluded From the Ordinance?
Employers with seasonal or temporary employees potentially may avoid the paid sick leave requirement. Under the proposed ordinance, employers may require employees to be employed for 180 days before they are eligible to use the accrued paid sick leave benefit. Thus, short-term employees may accrue, but be ineligible to use, paid sick leave.

Additionally, employers with unionized workforces will not be affected by the ordinance until the expiration of the collective bargaining agreement in place on the effective date of the ordinance. And even then, employers and their unionized employees may explicitly waive the paid sick leave requirements via future collective bargaining agreements.

Other Requirements and Parting Recommendations

Employers that already provide paid sick leave, particularly in the amount that would satisfy the proposed/impending ordinance requirements, will be ahead of the curve. Those employers, like all covered employers, also will be required to comply with the ordinance’s notice mandate, which, similar to the recently enacted Chicago Minimum Wage Ordinance, will require employers to: (1) post in a conspicuous place a notice informing employees of their rights to paid sick leave, and (2) provide a notice of rights with employees’ first paychecks following the ordinance taking effect.

Employers who do not already provide qualifying paid sick leave to employees will need to adopt a paid sick leave policy that complies with the ordinance’s requirements, prior to its effective date.

 

Quote of the Month

October 20th, 2016
Quote of the Month
“Give me six hours to chop down a tree and I will spend the first four sharpening the axe.”
–Abraham Lincoln

Too Busy to Think?

October 20th, 2016

Too Busy to Think?
How and Why to Carve Out “Think Time” For Business

Too Busy to Think? How and Why to Carve out 'Think Time' for Business

Business moves fast.

Between the pile of responsibilities on your plate and the constant demands of leading a team, you may feel like you don’t even have time to think. In order to lead well in today’s complex, fast-paced society, however, finding time to think is exactly what you need most.

Sure, “getting stuff done” is essential — at times. But without a clear goal in mind and a clear road map to get there, simply “doing things” might cost you and your team more than it gives. Here’s why — and how — to make time to think.

Why Your “Think Time” Matters

The popular media provides us images of business leaders as people with a lot of “hustle.” As a result, we begin to believe that doing more is the same thing as accomplishing more. But is it?

Warren Buffet has built a business empire by spending most of his time reading and thinking. At AOL, CEO Tim Armstrong and the rest of the executive staff spend four hours a week just thinking. LinkedIn CEO Jeff Weiner actually puts “think time” in his daily schedule — two hours of it. And Bill Gates’s twice-yearly vacations are spent in contemplation, not in catching up.

When you spend time thinking, you can approach business more efficiently, gaining maximum impact from minimum application of time, money or effort. Abraham Lincoln reportedly once said, “Give me six hours to chop down a tree and I will spend the first four sharpening the axe.” When you think, you spend time sharpening your axe — so when you start chopping down the tree, you can do it more quickly, more cleanly and with less effort.

How to Make Time to Think

Thinking is an essentially different mode of operation than action. While thinking can be combined with action — some executives do their best thinking on the treadmill or bicycle — “think time” works best when it’s structured specifically to let your brain work. Here’s how to create think time that works for you.

  1. Learn to say “no” and “please handle this.”
    Delegating is important. When it comes to finding space to think, delegating is essential. Check your schedule for meetings and tasks you can say “no” to, and find ways to delegate items that must be done. This will help free you from the details, giving you time and space to look at the big picture and to think more strategically.
  2. Find your quiet space.
    Virginia Woolf famously said that “a room of one’s own” was essential for success as a writer. For success as a leader, a “quiet space of one’s own” is just as essential. Focus on developing both a quiet “external” space in the form of an office with a closed door or a solo hike, and a quiet “internal” space with mindfulness practices like focusing on your breathing. When you quiet both the outside and inside noise, you improve the quality of your thought processes.
  3. Let it bubble.
    The best ideas don’t appear fully formed in their creators’ heads. Instead, they arrive in pieces — an idea here, a concept here, an insight on resources there. Use a journal or similar tool to keep track of ideas and to provide some perspective, so you can spend time considering how to fit the parts together.
  4. Be clear.
    Having an idea, mission or plan is half the battle. The other half is communicating it clearly to your team. Practice communicating your vision, ask for feedback and clarify where necessary so your team is as clear on the plan “on the ground” as you are during your quiet moments.
  5. Keep thinking.
    Once your thought processes have paid off by producing a new strategic plan or developing a new solution to a sticky problem, don’t quit. Keep examining how the change is working and contemplating improvements. And stick to your “quiet time” — practice will improve your ability to think deeply, which will continue to improve your business.

Think better when you can bounce ideas off another professional? Talk to your staffing partner about strategies for better hiring and retention.

Fact of the Month

October 20th, 2016
Fact of the Month
By his own admission, Warren Buffett spends about 80 percent of his working day reading and thinking.