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Employment Law News from Vigilant (formerly TOC): 02/04/2010
02-04-2010 |
 Medical questions after pre-offer drug test may violate ADA
An employer’s failure to give an applicant a little privacy while he was explaining his positive drug test to the company’s medical review officer (MRO) landed the employer in court on a discrimination claim under the Americans with Disabilities Act (ADA). On his supervisor’s recommendation, a temporary contract employee applied for a permanent job. His supervisor found out that the pre-employment drug test result was positive, and had the applicant talk to the MRO over the phone while the supervisor remained in the room, listening. The applicant explained that he had a prescription to control his epilepsy, and the MRO cleared him to work. The supervisor, however, asked HR not to send an offer letter, and told the temp agency the applicant had an attitude and performance problem. The temp agency fired the worker, who then sued under the ADA. The court acknowledged that employers have a right to follow up on a positive drug test, but having the supervisor listen to the applicant’s conversation with the MRO may have been an attempt to elicit information about a disability before a job offer was made. The court sent the case on to trial (Harrison v. Benchmark Electronics Huntsville, Inc., 11th Cir, Jan. 2010).
Tips: Notice of a positive drug test result should go directly to the MRO. If the MRO determines that a legitimate prescription caused the positive result, then you should be told the test result was negative, with no other details. You can make the job offer conditional on resolving any safety concerns expressed by the MRO. For more information, check out our Fact Sheet, “ADA: Post-Job-Offer Medical Exams” (3175).
FMCSA prohibits texting while driving
Drivers of commercial motor vehicles (CMVs) are prohibited from texting while driving in interstate commerce, announced the Federal Motor Carrier Safety Administration (FMCSA) in regulatory guidance. The agency conducted a study that monitored over 200 truck drivers over three million miles, and found that those who texted while driving were 23.2 times more likely to be involved in a “safety-critical event.” On average, texting drivers took their eyes off the road for 4.6 seconds during the six-second interval before a safety-critical event. At 55 mph, this means the driver was not looking at the road for 371 feet, about the length of a football field, including the end zones. The guidance applies to drivers of CMVs in interstate commerce when the CMVs are rated at 10,001 pounds or more, transport more than eight passengers for compensation or more than 15 passengers not for compensation, or transport hazardous materials requiring a placard (75 Fed Reg 4305, Jan. 27, 2010).
Tips: Ensure your drivers also comply with state laws or local ordinances that may be more restrictive, such as prohibiting talking on mobile phones. Violation of such a state law or local ordinance is also a violation of FMCSA rules. For more information about FMCSA requirements, see our Fact Sheet, “Motor Carrier Safety Requirements” (3146).
Battery verdict upheld against CEO for workplace harassment
An owner/CEO who relentlessly pursued a romantic relationship with a woman who worked for him is liable, along with his company, for battery. The price tag? Over $103,000 in compensatory damages and over $506,000 in punitive damages. Initially she viewed him as a friend and mentor, but then he began trying to kiss her, running his hands over her, and making sexual comments. She repeatedly fended him off for the next five years, until she was terminated. During her tenure, she complained to other company executives as well as the HR director, but a typical response was, “what are you going to do, he’s the president of the company.” By the time she decided to sue after her termination, the 300-day deadline for complaining of sexual harassment under federal law had passed, but she was well within the four-year statute of limitations for battery in the state where she worked (Myers v. Central Florida Investments, Inc., 11th Cir, Jan. 2010).
Tips: It is critical to establish an effective internal avenue for employees to raise serious concerns about top executives. Once a complaint goes external, defending it is much more expensive. Consider using an outside party such as Vigilant to conduct an investigation on the company’s behalf and report the results to an appropriate entity such as the board of directors. Company owners should consider establishing a process now, before any issues arise.
Employer ordered to rescind media contact policy
A policy that prohibited non-executives from speaking to the media without prior authorization was unlawful, ruled the National Labor Relations Board. The Board said the policy interfered with nonmanagement employees’ rights under the National Labor Relations Act (NLRA) to band together and communicate with the public about an ongoing labor dispute. In this case, a pro-union worker had received a favorable ruling against the employer in an unfair labor practices complaint, and was quoted in a union press release saying, “The judge got this one exactly right.” When the quote showed up in an Associated Press article, the employee’s supervisor asked him if he had talked to a reporter and reminded him of the company’s policy against talking with the media without authorization. The Board found the supervisor’s questions and the policy were unlawful (Trump Marina Associates, LLC, NLRB, Dec. 2009).
Tips: It’s natural to want to control company-related statements to the media. The challenge is crafting a policy that doesn’t run afoul of the NLRA. Consider using this language: “Only the following individuals are authorized to communicate with the media on the company’s behalf: [list job titles]. In all other cases, you are not permitted to communicate with the media about issues related to our business, except to the extent that your communication is protected by law.” Then address media breaches on a case-by-case basis, being careful to sort out any potentially protected activity. The NLRA isn’t the only law that may protect such communications; employees may be entitled to voice concerns to the media about employment discrimination, regulatory violations, securities fraud or other issues. Contact your Vigilant staff representative before taking disciplinary action.
Spotlight on Safety: Don’t forget mobile equipment in your lockout/tagout program
If your company has developed energy isolation programs (or lockout/tagout), but not written machine-specific procedures for your mobile equipment, then you’re overlooking an essential piece of the program. Safety regulations require procedures to be spelled out for all pieces of equipment, including mobile equipment, and failing to do so could lead to serious injuries.
When working on the electronics of the equipment, you must disconnect the battery. Blocking the mast or carriage before working under the load is also a must. Using chains, come-alongs or chain falls, is not an effective means of energy isolation. To ensure safety, use a block or manufactured stop mechanism to ensure the load is supported in case the hydraulic system leaks or completely fails.
For recommendations or help in developing machine-specific procedures for your mobile equipment, call the manufacturer or feel free to contact your Vigilant safety professional.
FMLA may protect leave to travel to a foreign country
Question: An employee requested leave to take her ill husband to Mexico for treatment and to visit family. Do I have to grant the leave? We know the husband has a serious health condition under the federal Family and Medical Leave Act (FMLA).
Answer: Maybe. You need to determine two things: is the husband going to receive treatment from a covered health care provider and what is the real purpose of her leave—caring for him (including psychological care) during treatment, or helping him visit family?
The FMLA recognizes treatment by a foreign health care provider if he or she is authorized to practice under the laws of the foreign country and the provider is performing within the scope of his or her practice. As a practical matter, it may be very difficult, if not impossible, to determine if that it is the case. If the employee’s spouse also has a local health care provider, you may ask for certification from that provider regarding the employee’s need to care for the spouse. Alternatively, you could ask the employee to have the medical certification form completed by the foreign health care provider, knowing that the information may not be verifiable.
Next, you need to determine the purpose of the leave. Recently a federal district court ruled that an employee’s seven-week trip to the Philippines that included taking her ill husband to visit family and attend a “Pilgrimage of Healing Ministry” at a Catholic church did not qualify as “treatment” under the FMLA and that the real purpose of her leave was to help her husband visit family (Tayag v. Lahey Clinic Hospital, Inc., D Mass, Jan. 2010). Are you puzzling over an FMLA issue? Call Vigilant—we’re here to help!
CALIFORNIA: Respirators recalled for poor fit
The California Division of Occupational Safety and Health (Cal/OSHA) has issued a recall alert for respirators that were stockpiled following the outbreak of the H1N1 virus. According to Cal/OSHA, the 3M Model 8000 N95 respirator has performed poorly in fit testing before use in the prevention of spreading aerosol transmitted diseases, such as the flu. Although Cal/OSHA is not prohibiting use of the 3M 8000 model for all employers, it strongly recommends against using this model for prevention of aerosol transmitted disease. If an employer decides to issue a respirator of this model to any employee, it must ensure a successful fit test with that employee. If you need more information about respirator fit testing, check out our Model Form, “Respirator Training and Fit Testing Certificate” (4684) or call your safety representative.
WASHINGTON: Company newsletter article spawns lawsuit
What do you get when you mix an employee’s positive drug test with the company newsletter? A defamation lawsuit! That’s what a Washington employer learned after it published in the company newsletter a notice that a long-term employee had been terminated for violating the company’s substance abuse policy through illegal use of a prescription drug. Although the court dismissed the claim on the grounds that there was no defamation because the information that was published was true, the employer nevertheless surely spent a tidy sum defending this case (Kellams v. Norco, Inc., Wash App, Dec. 2009).
Tips: Substance abuse testing information and any kind of medical information about employees or applicants should always be kept in the strictest confidence. While this court ruled that there were no defamatory statements in the newsletter, on a practical level, the employer’s actions provoked the employee enough to file a lawsuit. Had the employee filed an invasion of privacy action, he just might have won. For more information on this topic, see our Fact Sheet, “Privacy and Confidentiality in the Workplace” (3546)
Can You Believe It!
No matter how bad a day you’ve had, we’re betting you’ve never thought about stabbing yourself to get out of work. One Blockbuster employee in Colorado can’t say the same. After calling the police saying he’d been stabbed by three robbers, the employee confessed to stabbing himself because he didn’t want to be at work. Maybe calling in “sick” would have been a better, and potentially true, excuse for missing work (Source: The Denver Post, Nov. 3, 2009).
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UPCOMING EVENTS, TRAINING CLASSES AND WEBINARS:
Events:
2010 Vigilant Washington Safety & Workers’ Comp Conference
May 13, Everett, WA
Join us for a full day of fresh and exciting ideas to help you manage your safety and workers’ comp program, as well as new ways to prevent injuries and reduce costs.
Training:
Don't see classes in your area? Contact Nicole Forward at n.forward@vigilantcounsel.org to request classes in your community.
Legal Issues for Supervisors
February 11, Vancouver, WA
Safety Inspections
February 24, Tigard, OR
Communications Skills 101: Interpersonal Communications
March 11, Vancouver, WA
Investigating Accidents
March 31, Tigard, OR
Preventing Discrimination and Harassment
April 15, Vancouver, WA
Active Safety Leadership: Part 1 – Building a Positive Safety Culture
April 28, Tigard, OR
Conflict Resolution
May 13, Vancouver, WA
Active Safety Leadership: Part 2 – Enhancing Your Leadership Ability
May 26, Tigard, OR
Meaningful Meetings and Time Management: Getting the Most from Each Minute
June 10, Vancouver, WA
On-demand webinars:
Recent webinars are available as on-demand recordings that you can watch and listen to on your computer. Available titles range from $99 to $159. Contact Nicole Forward at n.forward@vigilantcounsel.org or call 1-800-733-8620 for information or to purchase any of our currently available titles:
ADA Amendments Act: Significant Changes for Employers
Addressing Harassment: Added Value Through Avoided Exposure
After the Layoff: Surviving the Stress
Avoid the Fine! Audit your I-9s
Background Checks: The Good the Bad and the Ugly
California Dreamin’ – Hiring and Terminating Employees in California
California Dreamin’ – Health and Safety
Employee Retention – Key Strategies for Reducing Turnover
FMLA: Sweeping Changes and Expanded Rights
Investigating Employee Complaints
Keeping Morale Up When the Business Cycle is Down
OSHA 300: Recordkeeping Basics and Recent Developments
Reasonable Accommodation: Understanding Your Legal Obligations
The Employee Free Choice Act
Wage Withholding Basics (California, Oregon & Washington available)
Wage Withholding: Understanding Child and Spousal Support Orders
Wage Withholding: Handling IRS Tax Levies, Federal Garnishments and Bankruptcy
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Vigilant Counsel is a publication of Vigilant, 6825 S.W. Sandburg St., Tigard, OR 97223, telephone 503-620-1710. © 2010 Vigilant. This publication presents general information in nontechnical language. Before applying this information to specific management decisions, consult legal counsel, or consult Vigilant staff in the following offices:
Everett, WA—425-349-4477
Spokane, WA—509-276-2277
Tigard, OR—503-620-1710
Eugene, OR—541-485-7296
Redding, CA—530-222-3500
Writers This Issue: Kristine Cienfuegos, Diane Weisheit, Karen Davis, Joe Angyus
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