In this issue:
…..OSHA has new rules – are you ready?
October’s Quizzler Answer
……FMLA and Surrogate Mothers
Monthly Health Tip
……the Best Fat Burning Foods just when you need them
Legal Updates & Reminders
- 1, 2017: 2017 FSA contribution Limit is raised to $2600 (up $50 from 2016). Adoption and Long Term Care benefits contributions are also raised for next year. See www.IRS.gov for Revenue Procedure 2016-55 and 2016-62 for further information.
- 24, 2016: “Blacklisting Rule”….a temporary injunction was issued on this date, delaying the requirement that certain employers report all violations of 14 different labor laws to the federal government, to determine whether the employer is responsible enough to be awarded further government contracts.
- 1, 2016: New date when OSHA will start enforcement of its new anti-retaliation provisions. This is the second delay. See www.OSHA.gov for further information.
A safe workplace is good for everyone: workers get home to their family and friends, employers have the staff to keep production going out the door or customers being served, and prospective new employees aren’t afraid to come work for you. The good news from OSHA is that for most of the past 13 years, occupational injuries and illnesses have been declining, per the Bureau of Labor Statistics. They reported three recordable illnesses or injuries per 100 full-time workers, which is the lowest recorded rate since 2002. Although it appears that the cooperation between employers, employees, unions, and safety and health professionals is paying off, there still were close to 3 million recordable non-fatal injuries reported and more than 4,500 workers killed on the job last year.
As we are all doing an annual HR policies and procedures review and update here at year end, safety policies and procedures are worth reviewing and updating now as well. Listed below are OSHA’s 10 most frequently cited safety and health violations in 2016. What a great place to start, in making sure your company’s safety policies and procedures are up to date!
- Fall protection
- Hazard communication
- Respiratory protection
- Powered industrial trucks
- Machine guarding
- Electrical wiring
- Electrical, general requirements
Since OSHA issued its illness and injury record-keeping rule’s anti-retaliation provisions effective December 1 of this year, I’ve been getting questions from employers. Two aspects of the rule seem to be particularly confusing: (1) Can we still require post-accident drug testing? (2) Can we still have a safety incentive program? The answer to both questions is ‘yes….but’! Here’s my understanding of the impact of these two provisions.
- Post-accident testing is not prohibited, unless it or the threat of it is used as a form of retaliation against employees who report injuries or illnesses. To that end, OSHA has said they will evaluate the following factors:
- Whether the employer had a “reasonable basis” for concluding that drug/alcohol use could have contributed to the injury or illness;
- Whether other employees involved in the incident were also tested or whether the employer only tested the one who reported the injury or illness;
- Whether the employer had a heightened interest in determining whether drug use could have contributed to the injury or illness due to the hazardousness of the work being performed when the incident occurred.
The Bottom Line: the danger you may have is using a “blanket” post-accident drug testing policy. For example, it will not be appropriate to drug test an employee who is rear-ended in the company truck while he’s stopped at a traffic light. But, it may be appropriate to drug test him if he speeds through a red light in your company truck and injures someone in the car he hits in the intersection.
- Safety incentive programs are still allowed, but they can’t be tied to the reporting of any incidents.
The Bottom Line: the company that holds a raffle of a $500 gift card for every month that the company doesn’t have a lost time accident would likely be in violation of the new rules. By withholding the gift card if a lost time accident is reported, it could be viewed as retaliation for that reporting and squelch future reporting. But, the company that raffles off a $500 gift card for each month in which employees universally complied with legitimate workplace safety rules, such as wearing their hard hats, would not violate the rules.
Be sure to run any questions you have on this by your in-house safety professional, workers’ compensation carrier, labor attorney or your HR consultant.
October’s Quizzler Update! Last month we posed the following scenario…
One of our employees is a surrogate mother for a friend of hers unable to bear a child. She’s being paid for this, and we don’t approve. What are our options regarding granting FMLA?
- Grant her FMLA leave. The FMLA covers pregnancy, and the circumstances are not relevant no matter what your personal feelings are.
- You don’t have to offer FMLA if she isn’t going to keep the child.
- You must grant her FMLA leave, but only for the time of her disability (usually, 6 weeks), as she will not need ‘bonding’ time with the new baby.
We believe that answer “A.” is the best answer. Once FMLA is granted for pregnancy, it is granted. The employer has no control over whether the employee actually uses the time off after the child’s birth for bonding or baby care. It is unfortunate you don’t agree with the employee being paid by the mother for this service, but it probably isn’t in the company’s best interest to quibble with her on this one.
Fat Burning Foods When You Need Them The Most!
Calorie-loaded holiday food is right around the corner, so here are some tips to know the foods that will help you burn off the calorie excesses of the pecan pie with whipped cream, cornbread stuffing, sweet potato casserole with marshmallows, and the turkey gravy! These tips are courtesy of NewsZoom:
- Black Pepper
- Green Tea
And of course, lots of veggies! Bon appetite!
The goal of this monthly e-newsletter is to briefly bring you current news in the HR world that could impact your company and how you interact with your employees, and also to share some tips and lessons learned for keeping your company compliant with the myriad of federal and state employment-related rules and regulations. This newsletter is not intended to provide legal guidance to you.