OSHA MEMORANDUM CLARIFIES EMPLOYER’S RIGHT TO CONDUCT POST-ACCIDENT DRUG AND ALCOHOL TESTING

Q.  Are there any limitations on my company’s ability to require employees to submit to drug and alcohol testing after an accident?

A.  In May 2016, OSHA published a final rule that, among other things, amended the Occupational Safety & Health Act (OSH Act) to prohibit employers from retaliating against employees for reporting a work-related illness or injury. In the preamble to that final rule, OSHA cautioned that a blanket rule that mandates drug/alcohol testing after every accident, injury or illness could be seen as retaliatory. Instead, before requiring an employee to submit to post-accident testing, OSHA said  that there must be a “reasonable possibility” that drug or alcohol use caused or contributed to the reported injury or illness.  Thus, for example, it would not make sense to test an employee who reported a repetitive strain injury from typing, since drug or alcohol use is not likely to be involved.

Fast forward to October 2018. OSHA recently issued a memorandum clarifying the Department’s position on post-accident drug and alcohol testing.  First, the Department stated that many employers who conduct post-accident testing “do so to promote workplace safety and health.”  While blanket post-accident policies still are not permitted, the Department stated that a post-accident testing policy would only violate the OSH Act “if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

The Department further stated 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’s workers’ compensation law;
  • Drug testing under another 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 an employee. However, the Department warned that, if the employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just the employee who reported an injury.

Under this new interpretation, most forms of post-accident testing should now pass muster, so long as the policy specifies that all employees whose acts may have contributed to a workplace accident will be tested.

The Department also addressed safety-incentive programs, stating that incentive programs that reward workers for reporting near-misses or hazards, and encourage involvement in a safety and health management system are “always permissible.” Rate-based safety incentive programs (which focus on reducing the number of reported injuries and illnesses by offering prizes or bonuses based on injury or accident-free periods, or evaluating managers based on their work unit’s number of injuries) are permissible “as long as they are not implemented in a manner that discourages reporting.”  If a rate-based incentive program penalizes an employee for occurrences and/or reports of workplace injuries or illnesses, the program must include adequate precautions to ensure that employees feel free to report an injury or illness, such as (a) an incentive program that rewards employees for identifying unsafe conditions; (b) training to reinforce reporting rights and responsibilities and emphasize the employer’s non-retaliation policy; and (c) a mechanism to accurately evaluate employee willingness to report injuries and illnesses.

–Tracey E. Diamond

 

Westchester County Paid Sick Leave Law Effective April 10, 2019

Q: I am an employer in Westchester County.  What do I need to know about the new paid sick leave law?  If I have employees in both Westchester County and New York City, can I have one paid sick leave policy that covers everyone?

A: Westchester County recently enacted its Earned Sick Leave Law (“ESLL”), which goes into effect on April 10, 2019.  While the law is similar in many aspects to New York City’s Earned Safe and Sick Time Act (“ESSTA”), there are some important differences.  Employers who want one policy to cover employees in both locations (referred to below as a “dual policy”) can opt to offer the more generous benefit.  Alternatively, employers can create a policy with carve-outs that are applicable to subsets of employees (referred to below as a “carve-out policy”).  As explained below, the key differences between the laws are whether the law covers safe time as a permissible use of sick leave, and the definition of family member.

All Westchester County employers are subject to the ESLL – like the ESSTA, employers with five or more employees must provide paid sick time, while employers with fewer than five employees may but are not required to make the sick time paid. The ESLL covers any person employed in Westchester County for more than 80 hours in a calendar year.

Under both laws, employees earn one hour of sick leave for every 30 hours worked, up to a cap of 40 hours per year. Accrued/unused leave must be carried over to the following year.

Both laws require that employees begin earning sick leave at the beginning of employment, and allow employers to impose a 120-day waiting period after commencement of employment before sick leave can be used.

Both laws provide for the following uses of sick leave: (1) care or treatment of an employee’s mental or physical illness, injury or health condition, or preventative medical care; (2) care or treatment of an employee’s family member’s mental or physical illness, injury or health condition, or preventative medical care; and (3) closure of an employee’s place of business due to a public health emergency or an employee’s need to care for a child whose school or childcare provider has been closed due to a public health emergency. In addition, the ESSTA allows sick leave to be used for “safe time,” which is time associated with when an employee or an employee’s family member has been the victim of a family offense matter (crimes such as harassment, stalking, or assault between members of the same household), sexual offense (crimes such as sexual abuse or rape), stalking, or human trafficking.  The ESLL does not require sick leave to be used for these purposes.  Thus, a dual policy should include the use of sick leave for safe time, while a carve-out policy should only apply safe time to NYC employees

Both laws define “family member” broadly, to include an employee’s child (including the child of an employee’s spouse or domestic partner), spouse, domestic partner, parent (including the parent of an employee’s spouse or domestic partner), sibling, grandparent, grandchild, and any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship. Additionally, the ESLL includes the following as family members: persons formerly married to or in a domestic partnership with one another regardless of whether they still reside in the same household, persons who have a child in common (regardless of whether they have been married, domestic partners, or have lived together at any time), and persons not related by blood or affinity who are or have been in an intimate relationship with the employee, regardless of whether they have lived together at any time.  The ESLL does not define “intimate relationship,” though future guidance could address the issue.  A dual policy should consider “family member” to include all of the above categories, while a carve-out policy should specify that the additional ESLL definitions only apply to Westchester employees.

Both laws allow employers to require reasonable documentation of the use of sick time if an employee is absent for more than three consecutive work days. The ESSTA also allows such documentation for absences of more than three consecutive work days for safe time.

Unlike the ESSTA, the ESLL allows a private right of action. Employees can file complaints with the Department of Weights and Measures – Consumer Protection (the Westchester agency that will enforce the law), or bring a civil lawsuit.  Employees  may recover either three times the wages that should have been paid for each instance of undercompensated sick leave taken, or $250, whichever is greater.  Employees can also recover $500 for each instance where the employees have been unlawfully denied requested sick time.  Recovery of back pay (if applicable) and reasonable attorneys’ fees also is available.

Both laws have notice requirements. The ESSTA requires that a written notice of employee rights be provided to employees upon commencement of employment.  A form notice is available at http://www.nyc.gov.  The ESLL requires that employers provide employees with a copy of the law and a written notice of rights by June 28, 2019, or at the commencement of employment, whichever is later.  Both laws also have posting and three-year recordkeeping requirements.

To prepare for the new law, Westchester County employers should review their current sick leave policies and determine whether revisions are needed. If employers do not have sick leave policies, they should prepare to implement compliant policies by April 2019.

Jessica Rothenberg

Employers Must Comply with Detailed Requirements When Having a Third Party Perform Background Checks

Q: Are there certain rules an employer must follow when conducting background checks on employees and prospective employees?

A: The Fair Credit Reporting Act (“FCRA”) is an often overlooked federal law that imposes stringent technical requirements on employers wishing to procure a “consumer report” from a third party “consumer reporting agency” for hiring or other employment purposes. Individual FCRA lawsuits and class actions are on the rise and failure to comply with the FCRA can result in harsh financial penalties.  This blog post provides a brief overview of the FCRA.

The FCRA’s definition of a “consumer report” is quite broad and includes, but is not limited to, credit reports, criminal history reports, and driving records obtained from a “consumer reporting agency.” Nearly every third party background check provider will qualify as a “consumer reporting agency” under the FCRA.  Before obtaining a consumer report to be used for employment purposes, employers are required to provide applicants and employees with a written disclosure stating that the employer plans to conduct a background check and employees/applicants must provide written authorization for the employer to obtain a consumer report prior to the employer actually obtaining the consumer report. The disclosure and authorization must be in a stand-alone document and cannot be part of the employment application.

After obtaining a consumer report, but prior to taking any adverse action based on the consumer report (e.g., not hiring an applicant because of her criminal record), the employer must provide an applicant with a “pre-adverse action” notice that includes a copy of the consumer report at issue and written notice of an applicant’s rights under the FCRA. The purpose of this requirement is to give the applicant the opportunity to correct any wrong information in a consumer report prior to the employer taking adverse action. Although the FCRA does not specify how long in advance the pre-adverse action notice must be given prior to taking adverse action, a period of at least five (5) business days generally is considered appropriate.

If an employer eventually decides to take adverse action, the employer must provide oral, written, or electronic notice of the adverse action and provide the applicant with certain information required by the statute. Although a written adverse action notice is not required by the FCRA, it is a good business practice to provide written notice so that documentation of compliance with FCRA requirements is available in the event of litigation.

A willful violation of the FCRA can result in statutory damages of $100 to $1,000 per violation, punitive damages and attorneys’ fees. Even if an employer is merely negligent in violating the FCRA, an applicant can still sue for any actual damages plus attorneys’ fees.

Before conducting any employment-related background checks or taking any adverse action based on a consumer report, be sure to also consult local and state laws. Certain states (such as California) have requirements in addition to those imposed by the FCRA. In addition, certain states restrict an employer’s use of the results of a background check. For example, Pennsylvania law only permits employers to consider criminal convictions “to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.”

Employers should consult with legal counsel before implementing any type of background check program.

–Lee Tankle

Accommodations May Be Needed for Hearing-Impaired Job Applicants and Employees

Q: I understand that employers may be required to offer reasonable accommodations to hearing-impaired applicants and employees. When are accommodations required?  What kind of accommodations must employers offer?

A: The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment. In the context of a job application, an accommodation is considered to be reasonable if it enables an applicant with a disability to have an equal opportunity to apply for and be considered for a job.  In the context of employment, an accommodation is considered to be reasonable if it enables an employee to perform the essential functions of the position.

Employers should be aware of the importance of being alert to the need for potential accommodations, and following through on such accommodations in the case of hearing-impaired applicants and employees. In the application stage, employers may become aware that an applicant has a disability through voluntary disclosure, or because it is obvious, such as when the applicant uses a service to respond to telephone inquiries, or requests a sign language interpreter for an interview.  Upon obtaining such knowledge, employers should engage in the interactive process to inquire whether the applicant needs a reasonable accommodation for the application process.

It is important to separate the accommodations needed for the application process from those that may be needed to perform the job. Employers should not assume that the accommodation needed for the application process will be the same as the accommodation needed for the job.  Conversely, an individual may not need an accommodation for the application process, but may need one for the job itself.

Possible accommodations for hearing-impaired applicants during the application process may include a sign language interpreter and providing information in written rather than oral form. The same alteration of the way information is provided during the application process can constitute an accommodation for the job itself.  Other potential accommodations could include captioned or text telephones and voice recognition software.  Some accommodations may be needed only occasionally – for example, a deaf employee who can lip-read may be able to rely on lip-reading in his day-to-day communications, but may require a sign language interpreter for group meetings.

Employers are not required to provide a reasonable accommodation if the employee is not a qualified individual with a disability, if the employer and employee are not able to identify a reasonable accommodation that would enable the employee to perform the essential functions of the job, or if the accommodation would impose an undue hardship on the company.

The Equal Employment Opportunity Commission (EEOC) has recently focused its attention on alleged failures to accommodate hearing-impaired individuals, particularly during the employment application process. Whether the ability to hear is an essential function of a job (and thus, whether applicant or employee could perform the job with a reasonable accommodation) is a fact-specific inquiry.  For example, courts have held that the ability to hear audible alarms is an essential function under certain circumstances.  Courts have also held that strong verbal communication is an essential function of some jobs, and that an employee’s use of non-verbal modes of communication is not a reasonable accommodation of that function.

Employers should ensure that managers and human resources personnel are properly trained to identify situations where potential accommodations for deaf applicants or employees may be needed, and that such personnel understand how the accommodation process works.

Jessica Rothenberg

Inconsistent Factual Accounts Could Support an Inference of Retaliation

Q.  Is there anything I should look out for in documenting my legitimate business reason for terminating an employee?

A.  The United States Appeals Court for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) recently issued an opinion that serves as a warning that inconsistent explanations of an employer’s reason for an adverse employment decision could support an inference of retaliation. In Donley v. Stryker Sales Corp., No. 17-1195 (7th Cir. Oct. 15, 2018), the plaintiff filed an internal complaint with the company’s human resources department that a manager was harassing a female coworker. The human resources director investigated the complaint and the company then terminated the manager, albeit with a hefty severance package.  Shortly after the termination, however, the plaintiff also was terminated.  The company claims that it fired the plaintiff for taking improper photographs of the CEO of a vendor, who was drunk at a work event approximately six weeks prior to plaintiff’s harassment complaint.

This is where the story shifts. In its response to the EEOC charge, the company alleged that the plaintiff showed the pictures she had taken to her supervisor on the night of the party and that he told her to delete them.  At his deposition, however, the supervisor claimed that he did not see the pictures on the night of the party.  Rather, he heard about them from coworkers, and told the human resources director about them.  The human resources director, on the other hand, testified at her deposition, that she learned about the photographs from another employee during his exit interview and decided to investigate the issue.

Plaintiff claimed that her supervisor and the human resources director knew about the photographs prior to the investigation and approved of them. It was not until after plaintiff brought the harassment complaint – in fact one day after the manager was terminated – that the human resources director initiated an investigation into the purportedly improper photographs.  Plaintiff argued that this timing was suspicious, and supported her claim that she was terminated for bringing the harassment complaint to the attention of the human resources director.

The lower court granted summary judgment to the employer. The Seventh Circuit reversed, however, finding that there was a disputed issue of fact whether the employer used the photographs – which it had previously approved – as a pretext for the termination.  According to the Court:  “[A]n employer’s shifting factual accounts and explanations for an adverse employment decision can often support a reasonable inference that the facts are in dispute and that an employer’s stated reason was not the real reason for its decision.”

Lessons learned? Retaliation claims can be difficult to defend, particularly when the adverse employment action occurs close in time to the employee’s protected activity.  When executing an adverse employment decision, employers should make sure that the adverse action is supported by a legitimate business reason.  Moreover, when defending this decision in a subsequent agency proceeding and lawsuit, it is important to create a consistent factual record of the stated reason for the decision.

— Tracey E. Diamond