HRMN 408 Week 6: OSHA and Safety Considerations

• Overview of OSH Act

• Safety and Health Standards

• Ergonomics

• Record-Keeping and Reporting

• Inspections and Citations

• The FDA’s Food Code

• Retaliation and Refusal to Work

• State Requirements

• Smoking

• Violence in the Workplace

• Guns in the Workplace

• Disaster Planning

CHAPTER 13

Workplace Safety

C o p y r i g h t 2 0 1 7 . S o c i e t y F o r H u m a n R e s o u r c e M a n a g e m e n t .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

EBSCO Publishing : eBook Comprehensive Academic Collection (EBSCOhost) - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS AN: 1697333 ; Charles Fleischer.; The SHRM Essential Guide to Employment Law : A Handbook for HR Professionals, Managers, Businesses, and Organizations Account: s4264928.main.eds

Book: The SHRM Essential Guide to Employment Law : A Handbook for HR Professionals, Managers, Businesses, and Organizations. Author: Charles Fleischer Date: 2017

Link: https://eds-p-ebscohost-com.ezproxy.umgc.edu/eds/ebookviewer/ebook?sid=5b0ede24-c7f5-4976- b493-54f34a2c000d%40redis&ppid=pp_239&vid=0&format=EB

The SHRM Essential Guide to Employment Law240

Workers’ compensation laws largely eliminated employer lia- bility for failing to provide a safe workplace. Occupational safety and health laws, such as the federal Occupational Safety and Health Act (OSH Act), restore that liability by imposing detailed safety and health standards on employers, by authoriz- ing unannounced inspections, compliance orders, and injunc- tions, and by imposing civil fines and criminal penalties for violations. While safety and health laws impose obligations on both employees and employers, generally only the employer is subject to penalties.

OVERVIEW OF OSH ACT The OSH Act, passed in 1970, imposes on every employer the general duty to furnish to each of its employees employment and a place of employment that are free from recognized haz- ards that are causing or are likely to cause death or serious physical harm—the so-called General Duty Clause. To ensure that obligation is met, the OSH Act requires every employer to comply with specific occupational safety and health stan- dards promulgated by the secretary of labor. The OSH Act also imposes posting, record-keeping, and reporting requirements on employers.

The OSH Act requires the secretary of labor, through the Occupational Health and Safety Administration (OSHA) in the U.S. Department of Labor (DOL), to issue safety and health standards in three categories:

• established federal standards, meaning standards that were in effect when the act was passed, either as part of some other act of Congress, or contained in regulations of a federal agency

• national consensus standards, meaning broadly accepted stan- dards adopted by nationally recognized organizations

• additional standards, meaning additional occupational safety and health standards that the secretary determines would serve the purposes of the OSH Act.

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 241

Employers are required to comply with all applicable standards issued by OSHA. Many standards are industry-specific, such as those dealing with longshoring and the fishing industry. Many others are broadly applicable.

SAFETY AND HEALTH STANDARDS The standards adopted to date fill thousands of pages in the Code of Federal Regulations. A comprehensive analysis is not possible here. What follows is a brief discussion of a few standards of more general applicability or interest. Employers should contact their trade associations or obtain copies of OSHA publications for guid- ance as to specific standards or standards uniquely applicable to their industry or profession.

Generally Applicable Standards As examples of generally applicable standards, employers are required to do the following:

• keep work areas clean, orderly, and sanitary, and keep floors clean and dry

• protect stairwells by guardrails and guard or cover other floor openings

• provide free and unobstructed exits from all parts of a building or other structure when occupied, mark exits by lighted signs, and maintain and test fire alarm and sprinkler systems

• provide readily accessible fire extinguishers • provide medical first aid supplies and, in the absence of nearby medical facilities, ensure the presence of a person trained in first aid

Employers are also required to have an emergency action plan cov- ering, at a minimum, the following:

• procedures for reporting a fire or other emergency • procedures for emergency evacuation • procedures to be followed by employees who remain to handle critical plant operations

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

The SHRM Essential Guide to Employment Law242

• procedures to account for employees after evacuation • procedures to be followed by employees performing rescue or medical duties

• the names or job titles of employee contacts who know about the plan

For employers with more than 10 employees, the plan must be in writing and kept available in the workplace for review. Employers with 10 or fewer employees may communicate the plan orally to employees.

AEDs Although OSHA standards do not specifically require that employ- ers install automated external defibrillators (AEDs) at the worksite, OSHA offers nonbinding advice that they do so and provide per- sonnel trained in their use.

Hazardous Materials Handling of hazardous materials is the subject of extensive regu- lation. OSHA has established detailed requirements for products such as flammable and combustible liquids, explosives, and liquefied petroleum gases. For highly hazardous chemicals (substances that are toxic, reactive, flammable, or explosive and are stored in suf- ficient quantities to cause a catastrophe if released), the employer must inform employees of the hazard involved and must consult with employees to develop safety management plans and training.

Closely associated with OSHA’s hazardous materials standards are its hazard communication standards. Chemical manufactur- ers and importers are obligated to determine the hazards of each of their products. That information, along with protective mea- sures for each product, is communicated downstream to distrib- utors, who in turn distribute it to their customers. OSHA has developed a multipage form for communicating this information, known as a safety data sheet (SDS) (formerly known as a materials

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 243

safety data sheet) that must contain the following information at a minimum:

• identification of the product; recommended use and restrictions on use; name, address, and telephone number of the chemical manufacturer, importer, or other responsible party; and emer- gency phone number

• identification of hazards • chemical name, common name and synonyms • impurities and stabilizing additives that are themselves classified and that contribute to the classification of the substance

• first-aid measures • firefighting measures, including special protective equipment and precautions for firefighters

• accidental release measures, including personal precautions, pro- tective equipment, emergency procedures, and methods and materials for containment and cleaning up

• handling and storage • exposure controls/personal protection • physical and chemical properties—appearance, color, odor, pH, melting point, freezing point, boiling point, flash point, evapora- tion rate, flammability, density, solubility, and viscosity

• stability and reactivity • toxicological information

All employers along the way, from manufacturer to end user, are required to communicate the SDS information to their employees who come in contact with the product and to train their employ- ees in handling the product. This communication and training program must be in writing; sample programs are available from OSHA. The hazardous products themselves must be appropriately tagged or marked.

Employers must have on hand, and make available to their employees, copies of the SDS for each hazardous chemical at the workplace.

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

The SHRM Essential Guide to Employment Law244

Lockout/Tagout Standard Another widely applicable standard is OSHA’s Lockout/Tagout Stan- dard, designed to prevent the accidental startup of machines and equipment while being serviced or the accidental release of hazard- ous energy. The standard requires that any machinery or equipment that is being serviced must be isolated from its energy source, and the isolation device must be locked. If the device cannot be locked, it must be tagged with a warning such as DO NOT START. The lock or tag may be removed only by the person who put it in place. Before removal, he or she must conduct an inspection. After remov- al but before startup, he or she must notify affected employees that the machine or equipment is about to be placed back in service. The standard also requires employers to train their employees in comply- ing with lockout/tagout procedures.

Personal Protective Equipment OSHA has adopted a number of standards dealing with use of per- sonal protective equipment (PPE). PPE standards are designed to protect the eyes, face, head, extremities, respiratory system, and the body generally. For example, when exposure to noise in the work- place exceeds specified levels or extends beyond specified durations, protective devices must be worn to reduce effective exposure below permitted levels. Respirators are required in dusty or smoky envi- ronments. Hard hats are a common sight at construction jobs.

Who pays for PPE—the employer or the employee? In the past, OSHA regulations required only that PPE must be provided. Some employers read these regulations as allowing them to charge their employees for hard hats, wire-mesh gloves, ear plugs, and other equipment. In response, OSHA issued final regulations requiring employers to pick up the cost of all PPE except the following:

• nonspecialty safety footwear and nonspecialty prescription safety eyewear, provided the employer permits such items to be worn off the jobsite

• boots with built-in metatarsal guards

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 245

• ordinary clothing, such as long-sleeve shirts, long pants, street shoes, and normal work boots

• items used solely for protection from weather, such as winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordi- nary sunglasses, and sunscreen

• replacement PPE, when the replacement is necessary because the employee has lost or intentionally damaged the PPE

• PPE voluntarily provided by the employee

Bloodborne Pathogens The health care and medical research community may be particular- ly interested in OSHA’s bloodborne pathogen standards. Bloodborne pathogens are infectious microorganisms in human blood that can cause disease in humans, such as hepatitis B (HBV), hepatitis C (HCV) and human immunodeficiency virus (HIV). Needlesticks and other sharps-related injuries may expose workers to bloodborne pathogens. Workers in many occupations, including first responders, hospital laundry employees, and nurses and other health care per- sonnel, may be at risk for exposure to bloodborne pathogens.

To reduce or eliminate occupational exposure to bloodborne pathogens, an employer must implement an exposure control plan for the worksite with details on employee protection measures. The plan must also describe how an employer will use engineering and work practice controls, personal protective clothing and equipment, employee training, medical surveillance, and other provisions as required by OSHA’s Bloodborne Pathogens Standard. HBV vacci- nations must also be made available free of charge to all employees who face an exposure risk; in addition, the employer must pay the employee’s travel expenses to receive HBV vaccinations and treat his or her travel time as work time.

The employer must also follow universal precautions, which require that all blood and certain bodily fluids be treated as if known to be infectious for HIV, HBV, and other bloodborne pathogens. Universal precautions include proper labeling, decontamination

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

The SHRM Essential Guide to Employment Law246

and disposal procedures, and use of PPE such as gloves and eye protectors.

ALERT! Safety considerations may justify placing limits on soliciting and distributing literature at

the workplace. However, unless the rules are consistently enforced, the employer may

be subject to unfair labor practice charges for prohibiting pro-union solicitations and

literature. (See Chapter 24 for information on unions.)

ERGONOMICS OSHA tells us that musculoskeletal disorders (MSDs) affect the mus- cles, nerves, blood vessels, ligaments, and tendons. Workers in many different industries and occupations can be exposed to risk factors at work, such as lifting heavy items, bending, reaching overhead, push- ing and pulling heavy loads, working in awkward body postures, and performing the same or similar tasks repetitively. Exposure to these known risk factors for MSDs increases a worker’s risk of injury.

OSHA pushed for mandatory ergonomic standards, but its efforts have so far been delayed or overturned by Congress. Despite con- gressional resistance, OSHA never abandoned the field and has been studying ergonomics ever since. As part of that process, it announced in 2002 a protocol for developing industry- and task-specific guide- lines. As of this writing it has issued voluntary guidelines for nursing homes, retail grocery stores, poultry processing, beverage distribu- tion, foundries, and shipyards. OSHA also identifies certain indus- tries at high risk for MSDs, including the following:

• nurses, nursing assistants, and psychiatric aides • firefighters and law enforcement officers • laborers and freight, stock, and materials movers • janitors • truck and bus drivers • maids and house cleaners • plumbers and heating, ventilation, and air conditioning (HVAC) mechanics and installers

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 247

Although OSHA’s ergonomics guidelines are nonbinding, in the sense that OSHA will not rely on them for enforcement purpos- es, employers still have a duty under the General Duty Clause of the OSH Act to provide a safe workplace. Despite their nonbinding status, the guidelines could conceivably be used to show that an employer has violated the General Duty Clause.

Employers should anticipate that ergonomics litigation will increase and that federal or state safety standards in some form will eventually be adopted.

RECORD-KEEPING AND REPORTING All employers, regardless of size, must report any work-related fatal- ity to OSHA within eight hours and any work-related, in-patient hospitalization, amputation, or loss of eye within 24 hours.

Employers that employ more than 10 employees must maintain an annual log and summary of all recordable injuries and illnesses. A recordable injury or illness is one that is work-related and that results in any of the following:

• a fatality • a lost workday • restricted work activity or job transfer • medical treatment beyond mere first aid • loss of consciousness • a significant illness or injury diagnosed by a health care profes- sional, including cancer, tuberculosis, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum

• a needlestick injury or cut from a contaminated object • an injury or illness requiring the employee to be medically removed • significant hearing loss

The records are kept on an annual basis, and each year’s records must be retained for five years. OSHA provides a set of forms, instruc- tions, and worksheets for satisfying record-keeping requirements, including Form 300 (Log of Work-Related Injuries and Illnesses),

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

The SHRM Essential Guide to Employment Law248

Form 300A (Summary of Work-Related Injuries and Illnesses), and Form 301 (Injury and Illness Incident Report), all available on OSHA’s website. Employees have a right to review these records, and the annual summary must be posted in a location accessible to employees.

Employers must also establish reasonable procedures for employ- ees to report injuries and illnesses to the employer.

INSPECTIONS AND CITATIONS OSHA inspectors (called Compliance Safety and Health Officers) are authorized to enter and inspect any workplace at all reasonable times to ensure compliance with OSHA standards. The inspections are unannounced—it is illegal for anyone to forewarn an employer that an inspection will take place—and may include interviewing employ- ees in private, taking photographs and environmental samples, and reviewing records. A representative of the employer and an employee representative may accompany the inspector during the inspection.

An inspection may be initiated by OSHA itself, or it may be con- ducted at the request of an employee who believes that a safety violation exists. It is illegal for an employer to retaliate against an employee for complaining about an OSH Act violation or for giving testimony or otherwise cooperating in an OSHA matter.

Inspections and other proceedings under the OSH Act present the risk that an employer’s trade secrets will be disclosed. The act, as well as DOL regulations, contain special provisions to protect the confidentiality of trade secrets. Inspectors also need appropriate security clearances to inspect areas containing classified information, and they must comply with the employer’s health and safety rules, such as wearing PPE.

Employers may refuse to admit an OSHA inspector and insist that he or she obtain a search warrant. Putting an inspector to this added burden obviously does not create a cooperative atmosphere, and it may in fact encourage the inspector to perform a more detailed, intrusive procedure. Nevertheless, there are times when the employ-

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 249

er should insist on a warrant. For example, if the employer suspects that a violation exists, a brief delay may provide just the opportunity needed to fix the problem. A delay might also be needed if a partic- ular company official who should be present during the inspection is away. The company might also want advice from its attorney before permitting the inspection. If an inspector anticipates that the com- pany will insist on a warrant, the inspector may obtain one before- hand, thus defeating any advantage the employer had hoped to gain from delay.

At the conclusion of the inspection, the inspector must inform the employer of any apparent health and safety violations. The employ- er also has an opportunity to point out conditions or procedures related to the apparent violations. After the inspection, the inspector submits a report to OSHA’s local area director. If the report indi- cates a violation, the area director issues either a citation or a notice of de minimis violation (a violation that has no direct or immedi- ate relationship to health or safety). OSHA must issue citations and notices within six months of the inspection.

Citations must describe with particularity the nature of the alleged violation, including a reference to the safety or health stan- dard allegedly violated. The citation must also fix a reasonable time within which to abate the violation. Employers are required to post a copy of the citation at or near the site of the violation for at least three days or until the violation is abated, even if the citation is being contested.

In addition to the citation, OSHA’s area director notifies the employer of a proposed penalty. (No penalty is proposed for de mini- mis violations.) Penalties can be as high as $12,675 per violation, depending on the seriousness of the violation. A failure-to-abate violation can be up to $12,675 per day. And willful or repeated vio- lations can cost an employer $126,749 per violation. The secretary of labor may also go to federal court for an injunction to stop any practices or procedures that pose an imminent threat of death or serious physical harm.

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

The SHRM Essential Guide to Employment Law250

The OSH Act provides for criminal penalties in case of a willful violation resulting in the death of an employee.

The employer has 15 working days after receipt of a citation to contest the alleged violation, the proposed penalty, or the time allowed for abatement of the violation. Contests are initially handled through administrative proceedings, followed by a right of appeal to the courts.

THE FDA’S FOOD CODE The federal Food and Drug Administration (FDA) issues the Food Code: a set of model regulations offered by the FDA for adoption by state and local government agencies that have public health responsibilities. The regulations in turn govern food service indus- try procedures. Unless adopted by other government agencies, the Food Code itself is not a binding regulation. The Food Code is published every four years with interim supplements. It is available on the FDA’s website.

RETALIATION AND REFUSAL TO WORK The OSH Act prohibits retaliation against an employee because the employee filed an OSH Act complaint, testified in a OSH Act pro- ceeding, or exercised any other rights afforded him or her by the act. But the act generally does not protect an employee who walks off the job out of safety concerns. In that situation, the employee’s remedy is to notify his employer of the danger and, if the employer fails to take appropriate action, to request an OSHA inspection. The statute does not authorize unilateral self-help.

There may be situations, however, in which the employee faces an impossible choice of either immediately complying with a super- visor’s instructions and risking serious injury or death, or not com- plying and being fired. In other words, the right to complain may simply not be a viable remedy. For those situations, OSHA has adopted regulations that say if the employee, with no reasonable alternative, refuses in good faith to expose himself or herself to the

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 251

dangerous condition, the employee will be protected against subse- quent retaliation.

The condition causing the employee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger by resorting to regular statutory enforcement channels. In addition, in such circumstances, the employee, when possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.

In a 1980 decision, the Supreme Court upheld this regulation in a case in which an employee refused to work on a steel mesh that other workers had fallen through and suffered injury or death. Later court decisions have emphasized that the specific requirements of the regulation must be met: the employee must be acting reasonably and in good faith, the danger must be both real and serious, and the employee must have no opportunity to address the danger through regular channels.

The National Labor Relations Act (NLRA) protects workers who voice safety concerns or who engage in a job action to protest safety conditions. Under the NLRA, an employer may not take adverse action against employees who engage in concerted activity to com- plain about safety issues or other job-related conditions. The NLRA also provides that employees who quit work in the good-faith belief that their workplace is abnormally dangerous are not deemed to be on strike. That provision has been interpreted to mean that, like workers who are on strike to protest an unfair labor practice, workers who are absent for safety reasons may not be permanently replaced. (In contrast, workers who are on strike for purely economic reasons may be permanently replaced. See Chapter 24 for more on unions.) Fear of exposure to asbestos in an apartment complex and fear of exposure to radioactive depleted uranium dust have also justified employee refusals to work.

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

The SHRM Essential Guide to Employment Law252

CASE STUDY: PROTECTED JOB ACTION In a 1962 Supreme Court decision involving a factory in Baltimore, seven employees walked off the job on a bitter cold January day because their work area was unheated. The area was often uncomfortably cold anyway (a matter of repeated complaint) and, on the day in question, the furnace that usually supplied some heat had broken down. The Supreme Court ruled that the job action was protected under federal labor law, so the employer had no right to fire the workers.

STATE REQUIREMENTS The OSH Act provides that individual states may assume respon- sibility for occupational safety and health matters by developing a plan that is at least as effective as the OSH Act itself. State plans are subject to review and approval by the U.S. secretary of labor.

At this writing, the following states, along with Puerto Rico and the Virgin Islands, have approved state plans:

• Alaska • Arizona • California • Connecticut • Hawaii • Illinois • Indiana • Iowa • Kentucky

• Maine • Maryland • Michigan • Minnesota • Nevada • New Jersey • New Mexico • New York • North Carolina

• Oregon • South Carolina • Tennessee • Utah • Vermont • Virginia • Washington • Wyoming

Once a state plan has received final approval, enforcement of work- place safety and health matters shifts to the state, and OSHA’s enforce- ment authority no longer applies with respect to any issue covered by the state plan.

SMOKING Most of the issues relating to smoking involve the rights of non-

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 253

smokers to be free from secondhand smoke. Many states and local jurisdictions have laws requiring employers to restrict smoking in the workplace. Some employers have responded by prohibiting smoking altogether. Others have designated a specific area for smoking that is sealed from the remainder of the workplace or that is under negative pressure so that smoke-filled air does not escape.

Aside from state and local law obligations, employers could con- ceivably face liability to nonsmokers under the following conditions:

• based on a violation of the OSH Act’s General Duty Clause • under workers’ compensation laws if an allergic employee suffers a temporary disability from cigarette smoke

• under the Americans with Disabilities Act, on the theory that an employee who is allergic to cigarette smoke is disabled and is enti- tled to reasonable accommodation

• for unemployment insurance benefits, if the nonsmoker claims he or she quit for good reason to avoid a smoke-filled, unsafe workplace

A prudent employer will adopt and enforce a smoking policy designed to protect the health of nonsmokers.

Do employees have a right to take smoke breaks? With few excep- tions, most state laws do not entitle employees to any breaks at all, so that a break policy (including cigarette breaks) is a matter within the employer’s discretion. An employer that does permit short breaks (up to 20 minutes in the view of the U.S. DOL) cannot exclude that time for purposes of computing hourly wages.

Even though employers do not have to permit smoke breaks, they are prohibited by laws in some jurisdictions from discriminat- ing against smokers, provided the smokers limit their smoking to off-duty hours.

QUICK TIP For unionized shops, smoking policy is a subject of mandatory bargaining.

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

The SHRM Essential Guide to Employment Law254

VIOLENCE IN THE WORKPLACE According to OSHA, homicide is one of the leading causes of fatal occupational injury in the United States. OSHA also reports that nonfatal violence is a widespread and growing phenomenon, par- ticularly in jobs involving the exchange of money with the public (for example, retail, home delivery), working alone, working late at night, guarding valuable property, and working in a community setting (for example, taxicab drivers, health care workers).

OSHA does not have any specific standards for workplace vio- lence. OSHA points out, however, that the General Duty Clause— that every employer furnish employment free from recognized hazards—may itself impose duties on employers whose workers are at risk.

Whether or not employers owe a specific legal duty to prevent workplace violence, it makes good business sense to offer at least a minimum level of protection. Employers should consider these steps:

• Be alert to any history of violence in applicants for employment. • Adopt, disseminate, and enforce a policy that any violence or threats of violence by employees will be met with dismissal.

• Prohibit employees from bringing weapons of any kind to the employer’s place of business or from carrying weapons during working hours (unless state law provides otherwise; see the fol- lowing discussion).

• Prohibit employee use or possession of alcohol and illegal drugs, or being under the influence of alcohol or drugs, while on the job.

• For larger employers, require photo ID badges for all employees. • Secure nonpublic work areas and limit access to those with keys/ passcards.

• Secure all areas after normal working hours. • Provide adequate lighting for storage and garage areas. • Provide cellphones to employees who work off premises. • As necessary, contract with a security firm to provide security per- sonnel, remote monitoring, emergency phones, alarms, etc.

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 255

• Restrict distribution of employee directories, particularly if they contain home addresses, home telephone numbers, names of spouses or children, or other personal information.

• Establish an employee assistance program (EAP) and encourage its use.

• Alert employees to any special risks the job may present and invite employees to express their concerns.

• Develop policies for responding to emergencies and train employ- ees in recognizing and responding to emergencies.

GUNS IN THE WORKPLACE The Second Amendment to the U.S. Constitution says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Before the Supreme Court’s 2008 decision in Dis- trict of Columbia v. Heller, there was debate whether the Second Amendment recognized an individual right to bear arms or whether it applied only to members of the militia (read “Nation- al Guard”). In Heller the Court ruled that the right applies to individuals (with certain exceptions, such as for felons and people with mental illness).

Under the Second Amendment, neither the federal govern- ment, nor by extension, the states, may infringe on this individual right to bear arms. But the Second Amendment says nothing about nongovernmental organizations and persons infringing on the right. So at least as far as the Constitution is concerned, a homeowner may forbid guests from bringing weapons into his or her home, a retail store or place of worship may ban weapons on premises, and a manufacturer may prohibit guns in its factory.

With homicide being the second leading cause of death in the workplace (according to OSHA), banning guns in the workplace might seem like good sense. It might be argued, for example, that such a rule is consistent with, even required by, the OSH Act’s Gen- eral Duty Clause. Or that reducing the risk of serious injury or death

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

The SHRM Essential Guide to Employment Law256

to employees will likely reduce workers’ compensation claims. Or that an employer that knows about an employee’s violent propensi- ties but that fails to restrict weaponry in the workplace may be liable for any injury or death the employee causes.

A number of states see the issue differently. As of this writing close to half the states have passed laws allowing employees to bring their guns to work, despite an employer policy to the contrary. So-called parking lot laws are typical: they permit employees to have weapons in their locked vehicle while at work. Some laws also prohibit employ- ers from searching vehicles parked on the employer’s lot, inquiring about possession of fire arms, or discriminating against gun owners.

We may never know what effect these state laws have on violence in the workplace. For more than 20 years, the Centers for Disease Control and Prevention (CDC) has avoided studying gun deaths fol- lowing threats by Congress to defund the agency. After the Sandy Hook school shootings, then-President Obama directed to CDC to research the causes and prevention of gun violence, but to date noth- ing has come of that directive.

DISASTER PLANNING Recent events have focused attention on responding to disasters of both the terrorist and the natural kind. While complete protection is impossible, advance planning can minimize injury and death.

Building Owners An employer that owns the building in which the workplace is located must, of course, maintain the building in compliance with local and state safety codes. This compliance may include, for example, fire alarm and sprinkler systems, fire extinguishers, and exit lights. Emergency exits must be accessible and unlocked.

Building owners can take additional steps which, though not required, may go a long way to protecting employees. The Nation- al Institute for Occupational Safety and Health (NIOSH), which is part of the federal CDC, has issued its Guidance for Protecting

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 257

Building Environments from Airborne Chemical, Biological, or Radiological Attacks.

NIOSH’s recommendations regarding chemical, biological, or radiological (CBR) attacks include the following:

• preventing access to outdoor air intakes, such as by relocating them on secure building roofs

• securing roofs and other areas where mechanical equipment is located

• isolating lobbies, mailrooms, loading docks, and storage areas • securing return air grilles • restricting access to information about building operations and systems

• installing high-efficiency filters in the HVAC system • developing a response plan for a CBR emergency, such as shut- ting down the HVAC system entirely

Other Employers Employers that are not directly responsible for building main- tenance and operation can also prepare for disasters, by means such as the following:

• maintaining duplicate employee information (such as names, addresses, payroll data, and emergency contacts) offsite

• establishing a phone tree or blast email or text system to alert employees about whether to report to work

• determining in advance (in consultation with local disaster planning agencies) which emergencies require evacuation of the workplace and which require sheltering in place

• conducting practice drills for various types of emergencies • if evacuation is appropriate, such as in response to a fire emer- gency, establishing a gathering point for all employees so that an accurate count can be obtained and emergency personnel can be informed whether all persons are accounted for

• identifying persons with disabilities or who may have special needs in an emergency and assigning appropriate personnel to assist them

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

The SHRM Essential Guide to Employment Law258

QUICK TIP The Equal Employment Opportunity Commission (EEOC) has ruled that an employer

may inquire about a worker’s disability so that the employer can assist the worker in a

disaster. However, it is up to the worker to decide whether assistance is necessary. Any

information obtained about the worker’s disability or need for assistance is subject to

special confidentiality requirements.

Pandemics Outbreaks of highly contagious, even deadly, infections seem to be more common, including Legionnaires’ disease, severe acute respira- tory syndrome (SARS), Middle East respiratory syndrome (MERS), Ebola, and Zika. It makes good business sense for employers to take whatever steps they can to protect their workforce from these infec- tions. They may even have a legal obligation to do so under federal and state occupational safety and health laws. This means limiting the spread by enforcing good sanitation practices and social distanc- ing. For example, employers should do the following:

• educate employees as to means of transmission, symptoms, treat- ment, and prevention

• encourage frequent hand washing • suspend social customs like handshaking • encourage employees to clean work areas frequently with alcohol wipes

• provide and encourage use of hand sanitizers • provide and encourage use of face masks or respirators • spread employees out over work areas and stagger their shifts • substitute videoconferencing for face-to-face meetings • require symptomatic or exposed employees to stay away from the workplace

• implement a teleworking policy for as many employees as possible (see Chapter 20 for more on teleworking)

• limit nonessential travel, especially to regions where disease is prevalent

• isolate employees who are returning from disease-prevalent regions

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

Workplace Safety 259

Despite these efforts, a local outbreak is still likely to cause sub- stantial reductions in the workforce. To prepare for that event, employers need to identify critical functions that must be performed; provide backup for those critical functions, such as cross-training of employees; and postpone or eliminate noncritical functions. If the business is one that can switch to a related product or service, employees will need to be trained in providing that product or ser- vice. A restaurant, for example, might add home-delivery services, which will affect staffing—fewer waiters, but more delivery person- nel. Delivery employees will need to learn safe food-handling prac- tices and how to process credit card payments offsite.

Businesses will also need to develop alternatives to face-to-face communications. Experience with recent disasters shows that landline and mobile telephone systems may either be down or unreliable due to overload. Alternatives might include email, text messaging, a company intranet, and a virtual private network. Each of these systems needs to be put in place and tested before the pandemic hits.

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use

EBSCOhost - printed on 11/22/2022 5:59 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS. All use subject to https://www.ebsco.com/terms-of-use