Unfortunately, workplace violence is a reality that many employers should be prepared to address. Lately, our firm (Barran Liebman LLP) has been working with an increasing number of employers addressing employee threats of violence to others and themselves, in addition to hate speech and hate symbols in the workplace.

According to the Bureau of Labor Statistics, 392 U.S. workers were workplace homicide victims in 2020, and 20,050 workers in the private industry experienced trauma from nonfatal workplace violence. There were 37,060 nonfatal injuries in the workplace resulting from an intentional injury by another person. Of the homicides, 81 percent were men. Of the trauma, 73 percent were women. The five occupational groups that experienced the most workplace homicides in 2020 were: sales, transportation and material moving, management, construction and extraction, and production. As for the trauma victims, 76 percent worked in health care and social assistance.

There are countless ways employers can better prepare to handle workplace violence. Here are a few things that employers can do now.

Respond to threats

Immediately remove the threatening employee from the workplace. Do not quibble on this; it is not acceptable for an employer to say that it is aware an employee is making threats of violence against others, but that it allowed the employee to continue to be in the workplace. Employees should NOT be allowed to return to the workplace until the company determines it is safe for them to do so. This may require the employee to complete a fitness-for-duty evaluation by an appropriate health care provider.

Employers also need to use their best judgment in determining when to call law enforcement. This should be an immediate step if there is an active threat: call law enforcement before calling counsel. Each situation requires an individual response from the employer that ensures the safety of the workplace. Employers that have resolved a particular threat of violence should also take the opportunity to review protocols and training to determine what can be improved for the future.

Peruse OSHA resources

The Occupational Safety and Health Administration (OSHA) has many resources on workplace violence, including prevention programs and training, that employers should utilize. Visit osha.gov/workplace-violence to access documents such as guidelines for preventing workplace violence for health care and social service workers and preventing homicide in the workplace.

Oregon OSHA also has great resources for employers at osha.oregon.gov/pages/topics/violence-in-the-workplace.aspx. These include a Violence Prevention Program online course, a Workplace Violence Prevention tool kit, and a fact sheet on “What employers need to know about hazards associated with houselessness.” Employers also need to remember there are strict reporting requirements related to fatalities and injuries in the workplace, and they include fatalities or injuries due to workplace violence.

Consider safety consultants

Employers should consider hiring safety consultants. They can visit one’s workplace and evaluate physical spaces to determine which protocols and measures can be implemented to improve employee safety in response to threats of violence. Additionally, if there is a threat, safety consultants can be hired to provide security and assess various aspects of the threat. Safety consultants can also make recommendations on surveillance, patrols, and other forms of security that an employer can implement that it may not have previously considered.

Consider risk assessments

Another excellent tool that employers can utilize in response to threats of workplace violence is a psychological risk assessment. Forensic psychologists can perform risk assessments by working with employers to evaluate the threats and other information available to the employer to determine the level of risk presented. Risk assessments can be extremely helpful to determine how serious a threat may be and the nature of the potential aggressor, if unknown. Forensic psychologists can also perform evaluations to determine whether an employee may safely return to work.

Leverage unions

Employers that work with employees who are represented by a union should utilize those relationships. Unions should be involved immediately if they represent an employee who is making threats of violence. If the union is dispatching that employee from a hiring hall, the hall should also be informed. Unions can also provide training to members on workplace safety and violence. Strategically, employers may also want to invite a union to the workplace so that training is jointly presented to employees. There are a variety of ways that employers can leverage unions to help support efforts to combat workplace violence.

Nicole Elgin is a partner at Barran Liebman LLP. She represents employers in all types of employment and labor matters. Contact her at 503-276-2109 or nelgin@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post How employers can prepare for possible workplace violence | Opinion appeared first on Daily Journal of Commerce.

Last summer, Oregon Occupational Safety and Health (Oregon OSHA) implemented temporary rules regarding employer obligations when employees may be exposed to extreme heat and a separate set of temporary rules for when employees may be exposed to wildfire smoke and poor air quality conditions. Those temporary rules have expired, and Oregon OSHA is seeking to replace them with permanent rules.

That rulemaking process is ongoing, which means employers can submit their comments and questions to Oregon OSHA so that it can hopefully resolve any ambiguity or concerns before publishing the final rules. There are also public hearings that employers can attend; visit Oregon OSHA’s website to register. Oregon OSHA has announced that it anticipates publishing the final rules by April 2022 in order to allow employers time to comply with the notice, training, policy and other requirements in time for the extreme heat and wildfire smoke season.

Proposed extreme heat rules

As proposed, the heat illness prevention rule will apply to any workplace – not just those outdoors – when heat dangers are caused by weather and the heat index meets or exceeds 80 degrees Fahrenheit. There would be an exemption for incidental heat exposures where an employee is not required to perform work for more than 15 minutes in any 60-minute period.

Under the proposed rules, employers would be required to provide:

• sufficient shade that is immediately and readily available to employees;
• an adequate supply of cool drinking water (it must be immediately and readily available to employees, and they must have plenty of opportunities to stay hydrated);
• written acclimatization plans and procedures to gradually adapt employees to working in the heat (acclimatization is a preventive measure that would include considerations such as personal and environmental risk factors, and workers’ activity levels);
• a written heat-illness prevention plan that spells out what will be done to protect employees and is made available to employees; and
• annual training and information for all employees and supervisors in a language that is readily understood.

The proposed rules have additional requirements if the heat index equals or exceeds 90 degrees Fahrenheit and work schedules and controls do not reduce worker exposure below that level. In those situations, employers would be required to:

• have effective communication that puts workers in contact with supervisors as needed;
• designate one or more employees and equipment to call for emergency services; and
• implement a heat illness prevention work/rest schedule that is adjusted for effective protection.

Proposed wildfire smoke rules

As proposed, the wildfire smoke rules apply to employers whose employees may be exposed to wildfire smoke where the ambient air concentration for fine particulate matter equals or exceeds an Air Quality Index (AQI) value of 101. There are some proposed exemptions, including for enclosed buildings in which the air is filtered by a mechanical ventilation system and the employer ensures certain exterior openings are closed (except when necessary to briefly enter or exit).

Under the proposed rules, when AQI meets or exceeds 101, employers would be required to:

• determine and monitor employee exposure at the start of each shift, using certain methods, to gauge the appropriate exposure controls;
• provide annual training and information for all employees who may be exposed to wildfire smoke;
• develop and implement a system to communicate wildfire smoke hazards before exposure occurs;
• use engineering or administrative controls to reduce employee exposure to less than an AQI value of 101 (Engineering controls could include enclosed buildings or vehicles where the air can be adequately filtered; administrative controls could include relocating work to another outdoor location with better air quality or changing work schedules); and
• provide employees filtering facepiece respirators for voluntary use (The respirators must be approved by the National Institute for Occupational Safety & Health and include what is commonly known as an N95).

When AQI exceeds 250, the proposed rules would require employees to wear NIOSH-approved filtering facepiece respirators. For respirators used exclusively for wildfire smoke, employers may implement the Wildfire Smoke Respiratory Protection Program rather than conduct medical evaluations and fit-testing under the Respiratory Protection Standard. This program is outlined in the proposed rules’ appendix.

When AQI exceeds 500, the proposed rules again require that employees wear NIOSH-approved filtering facepiece respirators. Also, employers must implement a complete respiratory protection program in line with the Respiratory Protection Standard.

Employers should stay alert for when the final rules are published, hopefully in April 2022, and prepare to comply with all requirements if applicable to their workplaces.

Nicole Elgin is a partner at Barran Liebman LLP. She represents employers in labor and employment law matters. Contact her at 503-276-2109 or nelgin@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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Oregon employers may be familiar with the rush that was the deadline for Oregon Occupational Safety and Health Administration (OSHA) temporary rules in late 2020. Building from those, Oregon OSHA is expected to release its final rules before the scheduled expiration of the temporary ones on May 4, 2021.

While we do not know what exactly will be included in the final rules, many employers do not want to be caught off guard with these extensive requirements as they were with the temporary rules in late 2020. The proposed final rules are similar to the temporary rules in many ways, but as Oregon OSHA’s rulemaking notice states: “in some cases, the provisions were expanded from the temporary rule as more information became available in relation to the transmission of the virus and public comments.”

Employers are wise to familiarize themselves with the general nature of the proposed final rules in order to prepare. The proposed final rules are over 100 pages long, so below is a breakdown of some key areas to flag.

General requirements and more

Like the temporary rules, the proposed final rules include extensive requirements for all employers as well as appendices for specific industries that contain additional requirements for any businesses operating in those sectors. The industries that can expect the additional appendix requirements include: restaurants, bars, brewpubs and tasting rooms, retail stores, personal service providers, construction operations, entertainment facilities, sports, veterinary care, and schools, just to name a few.

For example, the proposed appendix for employers engaged in construction activities requires advance screening. Specifically, the proposal would require each construction employer that controls access to a site to develop and implement a system to screen employees and visitors accessing the site using a pre-screening checklist consistent with the recommendations from the Centers for Disease Control and Prevention (CDC). Employers operating in this industry would also be required to limit work in occupied areas of a home or other structure to only those tasks that are strictly necessary.

Further, “workplaces at exceptional risk” are required in the proposed rules to follow additional protocols in a number of respects. Workplaces at exceptional risk are defined as: “any setting (whether a health care setting or not) where any employee performs one or any combination of the following job duties:

• direct patient care;
• environmental decontamination services in a health care setting;
• aerosol-generating health care or postmortem procedures;
• direct client service in residential care or assisted living facilities;
• emergency first responder activities;
• personal care activities that involve very close contact with an individual, such as toileting or bathing; or
• handling, packaging, cleaning, processing or transporting human remains or human tissue specimens or laboratory cultures collected from an individual known or suspected to be infected with COVID-19.”

Rules regarding vaccines

The proposed rules also have several requirements regarding vaccines that were not included in the temporary rules. This has obviously been a huge area of debate, so it is possible there will be substantial differences between the available proposed rule and what Oregon OSHA actually includes in its final rules.

However, as the proposed rules stand currently, employers would be required to cooperate by making their employees and appropriate space available at no cost to the employees whenever a local public health agency or Oregon Health Authority (OHA) indicates that vaccination within the workplace is necessary. If vaccination is conducted at the employer’s own direction, the employer is required to cover the cost of vaccination, including but not limited to the time the employee needs to travel to and receive the vaccine.

The proposed rules also make clear that unless a health agency or OHA directs otherwise, employers are not required to make employees accept the vaccination. Employers would also need to keep a record of employees who are offered the vaccination but decline. The proposed rules even indicate that Oregon OSHA intends to prepare a model declination form that can be used by employers.

The proposed rules also make an important policy statement: “it is the considered opinion of both the Oregon Health Authority and Oregon OSHA that all individuals should accept vaccination unless it is medically contra-indicated. Allowing some workers to decline such a vaccination does not indicate any doubts on the part of the state or Oregon about the value of the vaccine and the importance of reaching a high vaccination rate to both public and worker health.”

Employers should stay tuned for the final version of the rules from Oregon OSHA and make sure their workplaces are in compliance.

Nicole Elgin is a labor and employment attorney with Barran Liebman LLP. She can answer questions about Oregon OSHA’s rules or other matters. Contact her at 503-276-2109 or nelgin@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post OP-ED: Anticipating Oregon OSHA’s final rules for COVID-19 in the workplace appeared first on Daily Journal of Commerce.

July 2020 marked the 30th anniversary of the Americans with Disabilities Act. The ADA was enacted to ensure equal opportunity for Americans with disabilities in many facets of life. Title I of the ADA addresses disability accommodations and protections from discrimination specifically in the employment context.

The ADA defines “disability” broadly

Under the ADA, a “disability” is defined as a physical or mental impairment that substantially limits one or more major life activities. The law’s definition of “disability” also includes a person with a record of such impairment or a person who is regarded as having such impairment. Courts consistently interpret “disability” broadly to include alcohol use disorder, obesity or chronic migraines. Given the broad definition of “disability,” when employees ask for changes to their jobs due to a health condition, employers are wise to consider whether the request may be based on a “disability” and protected by the ADA.

What is a reasonable accommodation and when are employers required to provide one?

Generally speaking, employers are required to provide a reasonable accommodation to an employee or job applicant with a disability unless doing so creates an “undue hardship” or a “direct threat.” A reasonable accommodation is an adjustment that an employer makes to a job in order to allow an applicant or employee with a disability to have equal opportunity for employment. The law defines undue hardship as “an action requiring significant difficulty or expense” in light of the cost of the accommodation, and the size and overall financial resources of the employer. A direct threat is defined as a “significant risk to the health or safety” of the individual requesting the accommodation or others in workplace. Both the “undue hardship” and “direct threat” exceptions to providing a reasonable accommodation are interpreted narrowly and often misapplied by employers. We advise employers to consult with their legal counsel before denying an accommodation on these grounds.

Be careful with medical inquiries and exams

According to the Equal Employment Opportunity Commission, employers may not ask job applicants about “the existence, nature or severity of a disability,” but they may ask applicants if they can perform a specific job function. Employers cannot ask disability-related questions or require medical examinations until after a conditional job offer. Even then, there are significant restrictions on an employer’s ability to submit an applicant to a medical exam. The medical examination must be job-related and consistent with business necessity. Keep in mind, asking an employee questions specifically about his or her disability (rather than how it impacts job performance and the accommodations needed) can lead to liability for employers.

Employers performing workplace screening during the pandemic may also be submitting employees to “medical exams” and should check the latest guidance from the EEOC and state and local authorities to ensure these practices are permissible and consistent with current information available to health authorities.

Leave as a reasonable accommodation

Many employers are unaware that time off or “leave” may be required as a reasonable accommodation for employees with a disability. As the EEOC explains, providing leave as a reasonable accommodation can include making modifications to existing leave policies and providing leave when needed for a disability, even when an employer does not offer leave to other employees. Some of the most common mistakes the EEOC cites employers for relating to leave as an accommodation are employers that maintain 100 percent healed policies or that terminate employees who cannot immediately return to work following a medical leave absence. Often, an employee’s serious health condition that qualifies for Family Medical Leave (FMLA) or Oregon Family Leave (OFLA), may also mean the employee has a disability under the ADA.

The EEOC also reminds employers that they may need to consider whether reassignment is an option for employees with disabilities who cannot return to their regular job following leave. As with any other accommodation, the goal of providing leave as an accommodation is to afford employees with disabilities equal employment opportunities.

In the 30 years since its inception, the Americans with Disabilities Act has created a plethora of litigation as courts determine what exactly constitutes a disability, a reasonable accommodation, an undue hardship or direct threat, or when an employer’s medical inquiries or examinations run afoul of the ADA.

Nicole Elgin is an attorney with Barran Liebman LLP. She can answer questions about accommodation requests by job applicants or employees. Contact her at 503-276-2109 or nelgin@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post OP-ED: The ADA turns 30: Compliance in the evolving workplace appeared first on Daily Journal of Commerce.

On Jan. 1, 2019, Washington will become the fifth U.S. state to begin enforcing Paid Family and Medical Leave regulations. This new program will allow employees to receive a portion of their wages when they are on protected leaves of absence and will function similar to unemployment insurance programs. Importantly, the law neither creates a new source of leave for employees nor requires employers to administer the program.

Working in Washington

Remember, Oregon employers that have employees working in Washington may find them covered by this law under its “localization” test. Determining whether an employee is localized in Washington requires an employer to determine whether the employee will work 820 hours or more in Washington over the course of a year. Further, an employer that temporarily assigns an employee to work at a Washington location may be required to submit a waiver to the state Employment Security Department if that employee is expected to work fewer than 820 hours over the course of a year in Washington and is not a Washington resident. Because the department does not expect to complete rulemaking for this law until late 2019, employers should watch for further developments regarding the question of localization.

Reporting obligations and collecting premiums

The law requires employers with Washington employees to start collecting premiums and reporting hours on Jan. 1, 2019. The program will be funded by premiums collected on 0.4 percent of gross wages. Those premiums are shared between employers (responsible for 37 percent of the total premium) and employees (responsible for the remaining 63 percent). Employers are also required to withhold the employee portion from the employees’ paychecks and remit the total premiums to the department. Employers with fewer than 50 employees in Washington are not required to pay the employer portion of the premiums, but will still be required to collect, record and remit the employees’ premiums to the state. Employers are also required to report Washington employee hours and wages to the department.

Employee benefit eligibility

While employees and employers begin paying premiums in the new year, employees must wait until Jan. 1, 2020 to file benefit claims. Employees must work at least 820 hours in the first four of the last five completed calendar quarters from the leave date to be eligible to file a claim for benefits. Employers are required to report the number of hours employees are working because the 820-hour threshold is a portable benefit (meaning that an employee’s hours worked can transfer from employer to employer). The first quarterly employer reports are due to the department in April 2019; the department is still developing the online reporting tool for employers to submit the data.

Benefits can be used to cover an employee’s qualifying events, including the employee’s own medical condition, care for family members, for the birth or placement of a child, and certain military-related events. Importantly, Washington Paid Sick Leave cannot be used at the same time as Washington Paid Family and Medical Leave. Paid Family and Medical Leave may also run concurrently with the federal Family and Medical Leave Act (FMLA) and other state leave laws.

Voluntary plans

Employers that already offer employees paid family and medical leave benefits may want to pursue the voluntary plan option under the law. Voluntary plans are available for employers that want to operate their own paid family and medical leave programs, or those that believe their current plan, such as a short-term disability plan, already meets or exceeds the eligibility and benefit requirements of the law. Employers that pursue the voluntary plan option must apply to the department and be approved in order to operate a voluntary plan and avoid withholding and remitting both the employer and employee premiums starting in 2019. Under the voluntary plan option, employers are still required to report employee wages and hours each quarter.

Oregon’s version coming soon!

Employers should also take note that the Oregon Legislature is in the process of developing its own proposals for paid family and medical leave. Expect to see soon a similar law for Oregon employers.

Nicole Elgin is an associate with Barran Liebman LLP. She can answer questions about Washington’s new Paid Family & Medical Leave law. Contact her at 503-276-2109 or nelgin@barran.com.

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We are all learning from the #metoo social movement. The report accompanying Time’s Person of the Year selection of “The Silence Breakers” is sobering and should be read as a call to action. Good employers know that the best way to stop harassment is to prevent it from happening in the first place, but one of the lessons from #metoo is that good policies and well-intentioned training have not been enough. Employers should make 2018 the year they finally get this right.

1. Recognize that strong anti-harassment and discrimination policies alone are not enough

First things first: preventing harassment needs to be in the spotlight. Put the policy in the front of the company handbook. Talk about it when hiring employees. In fact, talk about it all the time. Supervisors and managers need to read it and reference it in team or department meetings. Do not bury the policy somewhere after the inclement weather policy. Make it visible, important and understandable.

If some employees are not fluent in English, provide translations. Keep the language simple and understandable. Talk about more than sexual harassment, and provide examples so employees understand – things like excessive attention, unwelcome hugging, reports or questions about date night, name calling, uncomfortable nicknames, gestures, comics that make somebody else the butt of a joke. Set the bar high. This should not be a policy about meeting the requirements of the law. This is a policy about how to treat the people we work with better.

2. Make sure everyone – including HR – is up to date on complaint reporting procedures

Good policies need to clearly identify how employees can report concerns regarding harassment or discrimination and list at least two people, by title, to whom employees can make the complaints. An even better policy explains that the company will investigate any complaints promptly, and that the information will be kept confidential to the extent possible while still allowing the company to conduct a thorough investigation. Policies also need to address how employees’ interactions on social media, even off the clock, may affect the workplace. Finally, effective policies emphasize that there will be absolutely no retaliation against any employee for reporting violations of the policy.

We often focus on having good policy language and making sure employees know where to report concerns about potential harassment or discrimination. Just as important, however, is making sure that management and HR are familiar with internal procedures in order to appropriately deal with those reports. HR needs to know what that initial conversation with the employee reporting the concern looks like, and some companies even teach HR professionals to practice trauma-informed interviewing to understand how to gain trust, ask information, and why the information is not necessarily conveyed in a logical sequence.

HR also needs to ensure that all complaints are investigated thoroughly, fairly and quickly – and to know when outside assistance might be needed. If minors are involved, there may be reporting responsibilities. Sometimes, even criminal conduct may be at issue. People accused may have complaints of their own. If the complaint cannot be appropriately addressed using internal resources, outside assistance may need to involve legal or trained investigators.

3. Start training – and not just the employees

Strong anti-harassment and discrimination policies are a good place to start, but there is no substitute for quality training. It is important to have regular trainings for employees, especially ones that reflect current issues of harassment and discrimination. A training presentation that has not been updated in a decade should be modernized. Outdated trainings show employees that the company either does not understand how to identify harassment and discrimination in the modern workplace, or worse, that the company is not invested in maintaining quality trainings on these important topics. Older training programs may fall short on how to address issues that arise after hours or through social media, but still affect the workplace. Good trainings help employees understand that they are all an important part of the solution: bystanders may also be able to intervene and should be asked to report.

Good companies also practice what they preach by having C-Suite trainings, manager trainings, HR trainings, and even train-the-trainers sessions. Additionally, the best companies often have a person from HR or management introduce the trainers and stay for the entire training to show how seriously the company takes these policies and trainings.

4. Be fair, be consistent and be prompt

Good policies, training and reporting procedures are ineffective if management and HR do not enforce them in a fair, unbiased and consistent manner. HR needs to take all complaints and investigations seriously. They also need to take the responses from the subject of the complaints seriously. A fair and thorough investigation will determine whether the complaint is, or is not, substantiated. Always keep in mind the goals of remedial action: putting an end to any improper conduct, ensuring that the past effects are remedied, and if appropriate, taking disciplinary action that is proportionate to any offense.

Nicole Elgin is an associate with Barran Liebman LLP. She can answer questions about harassment or discrimination in regard to company policies, training, investigations or lawsuits. Contact her at 503-276-2109 or nelgin@barran.com.

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