Given the ever expanded concept of what constitutes a disability, employers will continue to face an ever growing compliance challenge. Here are some basics to be remembered:
- Knowledge of the need to accommodate an employee can come from numerous sources including a work comp claims manager, a company supervisor or manager, HR, the employee themselves, a union rep, a doctor, poor performance, simple observation, or some kind of hotline call.
- To have a good process, it must be laid out step-by-step with supporting documentation.
- Be interactive. Remember the rule that the first to give up on the dialogue process generally loses.
- Have appropriate education and training. For example, HR could create a simple video to help employees with the accommodation process.
- Allow managers to engage in simple, easy and quick accommodations.
- Proper documentation of all steps in the process.
- Ongoing communication, monitoring, feedback, and improvement.
The accommodation process begins with a needs assessment. This means a thorough review of the job description and duties and a clear understanding of the employee’s limitations including potential absences etc. Remember you can accommodate an employee by the following means:
- Changing facilities or equipment
- Job restrictions
- Modifying schedules
- Modifying a test, training, or policies
- Offering vacant positions within their skill range
- Offering temporary positions (the ADA does not require you to create a new position for an employee)
- Support including readers, interpreters, or even dogs
- A leave of absence
- Any other idea that would generate a reasonable accommodation
Proper documentation of any undue burden
One of the biggest mistakes an employer makes is to assume in advance that an accommodation would create an undue burden. If the request is reasonable, the best approach is to let them try it and to be clear about performance standards. Document any shortcomings their accommodations may be causing and continue to communicate about ways to elevate them.
There is extensive material on the ADA on HR That Works including flow charts, checklists, forms, and policies to use. There is also training you can provide your managers (a good idea). Also remember if you have over 50 employees the FMLA may allow an employee who has serious medical condition up to 12 weeks of leave which they may use instead of accepting an accommodation.
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According to the California Occupational Safety and Health Act of 1973, every employer in the state is legally obligated to provide a safe workplace that is free of hazards. As part of that regulation, each employer is also required to have an Injury and Illness Prevention program. The following are practical tips that can be implemented to help reach the above goals.
Use Personal Protective Equipment
Depending on the job, there are different types of personal protective equipment that are a necessity to keep employees safe. Goggles are a must in any workplace environment that involves dust, chemicals or other objects that could injure the eyes. In workplaces where heavy objects could fall on the heads of employees, hard hats must be provided. Steel-toe shoes are also mandatory if the environment includes hazardous and heavy materials that could injure the feet.
It should be noted that simply making the equipment available is not enough. Employees must be properly trained on its use and must not be cleared for work in areas where such equipment is needed until they are fully trained.
Keep the Workplace Tidy
Clutter and debris can seem like the norm for a workplace but they can increase the chances of an accident. Employers need to ensure that there are an adequate amount of space to store items neatly. Spills should be cleaned up immediately to help prevent falls or reported to the right person so that they are taken care of as soon as possible.
Ensure Company Vehicles are in Good Working Order
Many people are injured while driving company vehicles each year. Each month, a visual inspection, as well as one that test the working order of items such as turn signals, should be completed. If repairs are needed, they should be taken care of as soon as possible.
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Most states demand that businesses, regardless of size, take every reasonable action to keep their premises safe for employees and visitors. The definition of visitors is fairly loose. Basically, it is anyone not employed by the business and covered by its workmen’s compensation insurance policy.
This means that clients, customers, delivery persons, repair persons, outside maintenance contractors and anyone who comes to the business premises needs protection from foreseeable dangers.
There are different types of people who come into a business and each has a different level of required care for its class of visitors.
Invitee
This is a person whose invitation is explicit (by appointment, for example) or implicit (a customer looks at the goods and services for sale in a shop). A business owner’s duty to an invitee is to exercise ordinary care and make the property generally safe without any dangerous conditions.
Licensee
A licensee in not an invitee or trespasser. An example of a licensee is a party who enters the premises for their own convenience or gratification. Think of a person ducking into your entryway to avoid the rain. The duty of care is far less than for an invitee, and the business is only liable to a licensee for willful and malicious harm.
Trespasser
This group of people enter the premises lacking an implicit or explicit invitation. They come on the business property for their own enjoyment or benefit. The only duty of a business owner is a negative one – the business cannot build any mantraps the willfully and maliciously causes a trespasser harm. Many states have an exception to this limited responsibility; if the business anticipates, suspects or knows of the presence of a trespasser it must exercise ordinary care and avoid inflicting injury on a trespasser through any kind of active negligence.
Common Workplace Visitor’s Injuries
Slip and Fall Accidents
These are the largest cause of visitor injuries. Injuries happen when a visitor trips, slips or falls and suffer injuries. These accidents often stem from things such as uneven floorboards, electrical extension cords crossing aisles or doorways, spills or liquids on the floor, and poorly installed carpet or carpeting that has tears or rips.
Negligent Security
It is normal that businesses have a duty to their invitees to make sure they are safe from foreseeable. A business is liable for the criminal acts of a non-employee when the business fails to keep the premises safe from criminal activity. Usually claims of negligent security stem from places such as:
- Hotels
- Motels
- Parking garages
- Apartment complexes
Businesses in high-crime areas (a parking garage in such an area needs adequate lighting, video cameras and warning signs that video surveillance is ongoing, and other security measure as needed.
Attractive Nuisance
This is a legal doctrine that applied mostly to children, even if they are trespassers. Hotels with outdoor pools need adequate fencing, a pool cover, locks and lighting, as the pool is attractive for kids to try to use after trespassing.
Defective Property Conditions
Businesses are often liable for dangerous or defective conditions. These include faulty elevators, faulty escalators, crumbling stairways and more.
Speak with your business insurance advisor about these risks and how to protect yourself, your business and employees from legal liability for them.
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In
Secretary of Labor v. United States Postal Service the question was whether an employee’s indication of an industrial injury on a FMLA request form triggered an OSHA recordkeeping obligation. To make a long story short, that claimant complained she was having an allergic reaction to dust produced by machinery she worked with. Her doctor provided her a note stating she was not to return to work at that machine. She eventually filled out an FMLA leave request form.
As this was going on, her complaint and that of another employee triggered an OSHA investigation. None of the inspections or analysis generated by her physician or OSHA found any kind of violation of OSHA standards or the exact allergic substance she was reacting to. The OSHA inspector was none the less concerned the company had not recorded her allergic reaction in the OSHA injury logs, a violation for which they were cited.
The Occupational Safety and Health Review Commission overturned a decision by the lower court and ruled due to privacy provisions associated with the FMLA, the employer was required to not share this information with the OSHA coordinator or the employee’s supervisor. The only time it would be appropriate to do so is for job accommodation purposes or emergency medical treatment.
The Commission also ruled the obligation to report an OSHA injury could come from someone’s position or other unique circumstances. According to the Commission no such facts existed to generate the obligation. Which is rather surprising given it was abundantly clear she claimed to be having allergic reactions to working around the machinery and told numerous people about it.
The court reminded employers they should separate FMLA files from the work comp or injury ones.
Take home lesson: do NOT share medical information across the organization unless that person has a “need to know”, there is an accommodation to consider, or there is some kind of emergency. Keep FMLA requests private and don’t automatically share the info with the OSHA
compliance team.
Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit
www.ThinkHR.com.
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The January deadline in which companies must turn in their OSHA 300 Log is quickly approaching. In order to meet the recordkeeping regulations imposed on many companies in a wide cross-section of industries, employers are required to collect information about injuries and illnesses that occur as well as maintain and prepare records.
Effective January 1, 2015, all employers under the jurisdiction of the OSHA will be required to report all work-related fatalities within 8 hours and all in-patient hospitalizations, amputations and losses of an eye within 24 hours of finding out about the incident.
What Needs to Be Recorded
OSHA regulations deem that the following must occur:
- all fatalities that are work-related must be recorded
- work-related injuries and illnesses that result in time away from work must be recorded
- physician-diagnosed illnesses and injuries that are significant must be recorded, even if they do not result in time away from work
- injuries such as an amputation, sprain, cut or fracture must be recorded. This list is not exhaustive.
- illnesses – both acute and chronic – need to be recorded. These include respiratory disorders, poisonings and skin disease, and this list is not limited to only those illnesses listed.
- work-related injuries – as defined by OSHA – are those in which exposure to workplace elements or an event either contributed or caused a condition or aggravated a condition or illness that was pre-existing.
Who Needs to Comply
Companies who are not in industries that are partially exempt from filing recordkeeping paperwork are required to do so. A few of these industries that are partially exempt include those that are deemed to be low hazard such as real estate, service, finance, retail and insurance. To determine if a business falls within a partially exempt industry, they are encouraged to look on the OSHA website for more information.
In addition, those companies that do not fall in one of the partially exempt industries must have at least ten employees. Each year, between February 1 and April 30, the business must display the results of the OSHA 300 Log within its workplace. All employees – both former and current – have the right to view these records and they must be provided with a copy of them by the following business day.
Source: http://www.claimsjournal.com/news/national/2014/12/18/259283.htm
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The business world today is being held accountable more and more often. In many cases, this means that a business might be stripped of its traditional business insurance limits during a catastrophic event. These are events that a business owner likely never dreamed of occurring to them. It is important, though, to plan for these unexpected events.
Umbrella Insurance Provides Overarching Protection
Legal settlements can not only rattle the framework of a business, they can put it in a serious financial bind. While a business might have been diligent about ensuring that they have adequate amounts of commercial auto insurance, general liability insurance and employer’s liability insurance, they might be unpleasantly surprised to learn that it is not enough. Given the fact that insurance settlements continue to rise, a commercial umbrella insurance policy is an effective way for a business to protect itself against a large loss.
Commercial Umbrella Insurance: Protective and Affordable
Many businesses – especially small and medium sized ones – might wonder about the necessity – as well as the affordability – of such insurance. Commercial umbrella insurance is unique, though, and it is that uniqueness that makes it so affordable. During an event, such as a legal settlement, your other insurances will be tapped for payment first. This means that those insurances that are required – auto, commercial liability and employer liability – are used to their limits.
Then the Umbrella Comes Out
Once the limits of your other, mandatory insurances are reached, then your commercial umbrella insurance kicks in. While this type of insurance is optional, purchasing a policy is considered to be a good investment in the long term viability of a business. To put it in perspective, for many small and medium size businesses, just one accident, injury or mistake that is determined to be the fault of the business can completely wipe out its financial coffers if the settlement outweighs its monetary limits.
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