On Monday, a federal judge in Texas refused to issue an injunction stopping OSHA from enforcing certain aspects of controversial “non-retaliation” rules. We reported on the proposed OSHA rules on Oct. 27, 2016. Briefly, the most controversial aspects of the rule are on two points:

  1. The rule would effectively prohibit incentive programs under which bonuses or other rewards are conditioned, at least in part, on the frequency of reported injuries. OSHA says that programs like that are a disincentive to reporting injuries.
  2. OSHA takes the position that drug testing programs that call for drug or alcohol testing automatically after an accident are improper. Instead, OSHA says that to be proper post-accident drug testing must be limited to circumstances where the facts at least suggest the possibility that alcohol or drug abuse played a part.

These two provisions had employers scrambling to review incentive and drug testing programs, and evaluating whether to make changes. Then a number of business interest groups filed a lawsuit in federal court in Texas seeking an injunction to stop these aspects of the rule form being enforced.
Continue Reading OSHA retaliation rules are going forward

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. Jourdan Day explains what this means here. 

In May 2016, we told you about OSHA’s final rule requiring electronic reporting of illnesses and injuries. This rule requires electronic submission of your OSHA logs, and the information provided will be posted on OSHA’s website. However, in the comments about the new reporting rules OSHA addresses anti-retaliation as it relates to the reporting of illnesses and injuries. The anti-retaliation regulations were originally scheduled to take effect Aug. 10, 2016 and later pushed back to Nov. 1, 2016. A lawsuit has been filed in the Northern District of Texas that could result in the anti-retaliation rules being delayed further or struck down. As a result of this lawsuit, OSHA has again postponed the effective date of the anti-retaliation provisions, which are now set to be effective Dec. 1, 2016. It is likely the court in Texas will act during November on the case. We will follow this lawsuit closely and report any developments or further delays. Importantly, although the lawsuit challenges certain aspects of OSHA’s interpretations of the retaliation aspects of the law, it does not have any impact on the electronic recordkeeping effective dates as we reported them in May.
Continue Reading Hidden anti-retaliation provisions in OSHA’s electronic reporting rule: How are incentive programs and drug testing policies affected?

A special thanks to one of our summer clerks, Abigail Chin, for her assistance with this article.

In the wake of Ohio’s new medical marijuana law, you may be thinking, what does it mean for your drug-free workplace policy? Ohio’s new medical marijuana law, H.B. 523, provides targeted exceptions for employers.

Ohio’s law goes into effect in approximately 90 days; however, it is expected that full implementation could take up to two years before the Ohio Department of Commerce, State Medical Board and Board of Pharmacy can establish licensing requirements for growers, processors, testing laboratories, dispensaries and physicians. H.B. 523 allows people with the following qualified medical conditions to receive a physician’s recommendation for medical marijuana: HIV/AIDS, Alzheimer’s disease, Amyotrophic lateral sclerosis (ALS), cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is chronic, severe and intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury and ulcerative colitis. Marijuana is only permitted in certain forms, like edibles and vaporizers; as smoking it is prohibited under the new law.
Continue Reading Ohio’s new law legalizing medical marijuana includes key exceptions for employers

Temperatures across the United States are starting to heat up. Employers must be cognizant of the impact these rising temps have on employees who work outside.

First things first. The National Oceanic and Atmospheric Administration (NOAA) put together the following list of symptoms of heat illness and first aid solutions:

  • Sunburn: Redness and pain.

As our sister blog, Technology Law Source has reported, on May 11, 2016, President Obama signed into law the Defending Trade Secrets Act (DTSA), which creates a federal trade secret misappropriation cause of action. As noted, businesses have a lot to consider in deciding whether to pursue this new cause of action in federal court when the security of their trade secrets are threatened. Because the DTSA does not pre-empt state laws protecting trade secrets, however, if a federal forum is otherwise appealing, there really is no reason not to pursue a DTSA cause of action.

Employers will be particularly interested in knowing that the DTSA includes an immunity from criminal and civil liability for employees who disclose their employers’ trade secrets if:

  • the disclosure is made in confidence to a federal, state, or local government official, directly or indirectly, or to an attorney solely for the purpose of reporting a violation of law;
  • it is made in a complaint or other document filed under seal in a lawsuit or other proceeding.

The DTSA also permits an individual who files a lawsuit against his or her employer alleging retaliation for reporting a suspected violation of law to disclose the employer’s trade secret to an attorney and use it in a court proceeding if the document containing the trade secret is filed under seal and in response to a court order.
Continue Reading Employers wanting to take full advantage of the Defending Trade Secrets Act should consider including immunity notice in all new and updated confidentiality agreements

On May 11, 2016, OSHA issued a final rule requiring electronic reporting of illnesses and injuries. The new rules apply to establishments with 250 or more employees. The rules require electronic submission of the 2016 OSHA form 300A summary report by July 1, 2017, and the 2017 300 log, 300A summary and 301 incident report for 2017 by July 1, 2018. In each subsequent year, all reports for every establishment must be submitted by March 2 of the following year. The new rules also require employers in high-risk industries (construction, manufacturing, furniture stores, waste collection and nursing care facilities) with 20-249 employees to electronically submit their 300A summary. OSHA has stated that no exceptions will be granted to employers who file the required reports in paper format. The information electronically submitted by employers will then be posted on OSHA’s website. OSHA has stated that it will post establishment-specific data but not post any data that would identify any employee. However, in major injury incidents (especially those where there is publicity), it would not be difficult to determine the identity of the employee(s).

OSHA has stated that it believes that publishing the data will encourage safer workplaces. In addition, OSHA has said that it intends to use the data to determine the employers and industries on which to focus its enforcement efforts.

This is a major change from the current injury and illness recording requirements. Presently, employers are required to maintain the 300 logs, 301 incident reports and 300A annual summary and to post the 300A summary in the workplace each year. There is no requirement to submit the records to OSHA. Generally, OSHA only reviews them in the event of an onsite inspection. The only current obligation to report to OSHA is the requirement to report fatalities, amputations, hospitalizations or the loss of an eye.
Continue Reading OSHA issues final rule requiring electronic submission of workplace illness and injury logs

Managing FMLA leaves that fall on holidays

Administering the FMLA is difficult. When an FMLA leave falls on a holiday, it becomes even more complicated. Employers must know how to answer three holiday-related questions. First, if a holiday falls during an employee’s FMLA leave, does that holiday count against the employee’s FMLA entitlement? Second, how is the FMLA administered when there is an extended plant, office or school shutdown? Lastly, must an employer provide holiday pay to an employee on FMLA leave?

Does a holiday count against an employee’s FMLA leave entitlement?

While many employers keep track of their employees’ FMLA entitlements in terms of days or even hours, the FMLA and its implementing regulations provide that employees receive 12 workweeks of leave in a one-year period. As a result, leave is calculated in workweek increments. Under 29 C.F.R. § 825.200(h), if an employee is off work for an entire workweek, even if it is a week in which a holiday falls, the employee uses a week of FMLA. Only when an employee is off work for less than an entire workweek will the employee have used a partial week of FMLA. For example:
Continue Reading How FMLA works during holidays

Whether the U.S. Equal Employment Opportunity Commission is taking advantage of the fact that HIV infection has been in the news lately (thanks to Charlie Sheen’s recent disclosure about his own HIV status) or the timing is pure coincidence, the EEOC earlier this month issued two publications regarding the rights afforded by the Americans with

As we enter football season, workforces should prepare for the estimated 25 million fantasy sports enthusiasts who spend at least an hour of work time managing their teams each week during the 13- to 17-week football season. (See more here.)  Distracted employees can reduce productivity, cause workplace accidents, and potentially impact the bottom line. As such, employers that are concerned with such productivity issues should put proper procedures in place to address these issues head on.

The first question of course, however, is are fantasy football leagues even legal? On the federal level, the Unlawful Internet Gambling Enforcement Act (“UIGEA”) provides that “no person engaged in the business of betting or wagering may knowingly accept” funds “in connection with the participation of another person in unlawful Internet gambling.” It does, however, exempt fantasy sports so long as the outcome of any contest reflects the relative knowledge or skill of the participants rather than chance, has an outcome that is determined predominantly by accumulated statistical results of sporting events, but not solely on a single performance of an individual athlete. In addition, for the exemption to apply, all prizes and awards must be established and made known before the start of the contest.
Continue Reading Fantasy sport issues in the workplace