[Webinar] OSHA & the ADA: How two Labor Laws Can Align & Diverge

On Tuesday, December 4, 2018, at 1 pm EDT, join Jordan B. Schwartz and Lindsay A. Disalvo of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar:  “OSHA & the ADA: How two Labor Laws can Align & Diverge.”Cover slide

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.”  Although OSHA portrays this policy as straightforward, in practice, it can be difficult to determine when and how to accommodate a disability under the Americans with Disabilities Act (“ADA”), while also protecting the safety of the disabled employee and his or her co-workers.  This assessment can be further complicated when the employer is unaware a disability may cause or contribute to a workplace safety issue.  The importance of understanding the laws at play in this context has increased, and will continue to increase significantly, due to the aging workforce, and the unique challenges these types of workers may face.

The ADA also requires that medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided when recording injuries and illnesses for OSHA Recordkeeping.  A disability may also impact whether and how an injury is recorded.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

During this webinar, participants will learn:

  • Requirements related to ADA disability accommodation, and how to evaluate an accommodation in the context of legitimate safety concerns
  • How to address unsafe conditions or performance related to an employee disability
  • Best practices to foster safety in the context of an aging workforce
  • Injury and illness recordkeeping practices related to employee disabilities

Click here to register for this webinar.

 

 

Whistleblower Retaliation Article Published in BLR’s HR Daily Advisor and Upcoming Webinar

whistleblower-articleBLR recently published a two piece article in the HR Daily Advisor by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding government agencies increased focus on whistleblowers and retaliation, and how employers can avoid whistleblower and retaliation complaints from their employees.

Over the past year, there have been significant changes in both the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) that make it easier for employees to demonstrate that an employer acted with retaliatory intent.  Given this increased focus on retaliation, it is prudent for employers to take steps to avoid whistleblower and retaliation complaints from their employees, and ensure that they have adequate workplace policies and complaint systems to address retaliation complaints before an employee complaint lands before the EEOC or OSHA.

Part 1 of the article, titled “Preventing Whistleblowers in the Workplace: EEOC Expands the Rights of Whistleblowers,” focuses on how the EEOC has modified the standard it uses to evaluate retaliation claims, and has become more aggressive in its whistleblower enforcement efforts. Continue reading

Workplace Violence: No Longer Just a Police Issue — Webinar Recording

On Tuesday, November 10, 2015, Eric J. Conn and Kara M. Maciel delivered a webinar regarding “Workplace Violence: No Longer Just a Police Issue.”

Every year, approximately 10% of workplace fatalities result from intentional violent acts.  The prevalence of workplace violence is even more alarming when you take into account non-fatal assaults and threats of violence.  This particular workplace hazard is uniquely challenging because the threat is often from outside the workplace, including non-employee third parties.  Regardless, workplace violence has also become a hot button enforcement issue for OSHA, citing employers under the OSH Act’s catch-all General Duty Clause for employers who do not do enough to protect their employees from violent acts.  Beyond OSHA, workplace violence can also implicate other employment laws.  For example, if violent acts or threats occur because of symptoms of an employee’s disability, the handling of discipline and termination gets tricky under the ADA.  Likewise, HR issues related background checks and negligent hiring could also contribute to civil liability.

Therefore, it is important for employers to develop and implement an effective Workplace Violence Prevention Program and appropriate hiring practices.  This webinar advised employers about their legal obligations to address workplace violence and the implications if they fail to do so.  It also provided employers with the knowledge and tools they need to develop a workplace violence prevention policy and training for employees to ensure they know what steps to take if an incident of workplace violence occurs.

Specific topics included:

  • OSHA’s enforcement philosophy about workplace violence and enforcement under the General Duty Clause;
  • When injuries that result from workplace violence must be reported to OSHA;
  • Reference checking, negligent hiring and supervision obligations to avoid liability to employees or third parties injured from workplace violence;
  • Employer obligations under the ADA, Title VII and state workers compensation laws; and
  • Recommendations for a compliant workplace violence prevention policy and employee training.

Here is a link to a recording of the webinar, which includes the full audio with slides.

Union Interference with OSHA Inspections

Now that the NLRB’s ambush election rulesworkplace safety signs all have taken effect and labor unions are able to take advantage of the significantly shortened time frame from the filing of a representation petition to the election, it has been questioned whether labor unions will continue to engage it its prior “corporate campaign” tactics to organize new workplaces.  As employers have experienced from several different unions in the past decade, including UNITE HERE, UFCW, SEIU and others, labor organizers attack the corporation from outside threats in its attempt to persuade the employer to sign a card check or neutrality agreement, rather than resort to the traditional secret ballot election procedure.  It’s akin to a death by a thousand cuts, and labor unions have found more success in organizing employees.  One of the corporate campaign tactics includes involving outside regulatory state and federal agencies to investigate the workplace for potential regulatory violations.

In this post by my partner, Eric Conn, he explains how labor unions have accompanied OSHA investigators during on-site inspections, even in non-union workplaces, and what employers can do when presented with labor representatives.

http://oshadefensereport.com/2015/09/30/what-can-employers-do-if-osha-brings-a-union-representative-on-an-osha-inspection/