Workplace Health Issues: Effectively Identifying And

Handling FMLA, ADA, Workers’ Comp, Health & Safety Whistleblower and

OSHA Issues

presented byPEDRO P. FORMENT, ESQ.

JACKSON LEWIS LLPOne Biscayne Tower, Suite 3500

2 South Biscayne Blvd.Miami, Florida 33131

(305) 577-7600

I. WHAT IS OUR GOAL FOR THE NEXT 60 MINUTES?

PROVIDE A FRAMEWORK FOR ADDRESSING WORKPLACE ENVIRONMENTAL, SAFETY AND HEALTH COMPLAINTS WHICH MAY INVOLVE WHISTLEBLOWER COMPLAINTS, FMLA, ADA AND WORKERS’ COMPENSATION CLAIMS

II. SOUND FAMILIAR? Identities have been changed to protect the innocent: (FMLA,

ADA, OSHA, WC, Etc.)

1. Weekend-Lover Mary complains that she is fine on weekends but when she returns to work on Mondays she cannot breath, gets skin rashes, and her hair begins to fall.

Weekend-Lover Mary claims it’s the workplace: ( ) mold ( ) poor ventilation ( ) Chinese dry-wall

2. Stay-Away-From-Me Billy complains Typhoid-Betty is hacking and coughing all day long and he is sure to soon become “infected” with her malady.

(Substitute hacking cough for open sores, rumored illness, etc.)

3. New-Age Wanda tells HR Director that ever since she started with the Company she cannot sleep at night, her hair is falling out, and she is “too stressed out” and believes its all because of her job.

4. Hypersensitive Helen claims the paint and construction at the office is causing her asthma and she wants to work from home (or Starbucks).

5. Sensitive-Sam claims co-workers perfumes and/or “smells” (body, carpet, air fresheners) are giving him migraines; he wants his own private office with a window with plenty of air circulation.

III. WHEN ARE THESE ISSUES MOST OFTEN RAISED?

1. In some cases Employee has a legitimate concern (even if mistaken)

2. In many cases it’s “The “Whistleblower Set Up” :Employee on fast track to discipline/termination latches on to complaints as defensive measure

3. The “Me-Too” SyndromeComplaints seemed to have “worked out” for

Mary. Now she is left alone and is given special treatment. I think I will try the same.

4. The Power StruggleWorkplace environmental safety and health

complaints become tool for the employee to “silence” supervisor or managers or get HR off their back .

IV. WHY THE INCREASE IN THESE TYPES OF COMPLAINTS?

1. Some Employees retain “Termination Consultants” to assist employee with getting fired the “right way” ($) – these types of complaints are prime tool of Termination Consultants.

2. The Achilles Heel - Many times Employers are not aware of the limits of their obligations- what must Employer do? What is unreasonable?

Panic sets in when you hear “toxic” environment or “making me ill”

3. Unlike discrimination/harassment policies with clear procedures, these complaints become more attractive targets because they are many times mishandled by Employer (even when the underlying allegation is false)

Environmental issues are many times outside management’s “comfort zone” which leads to either ignoring complaints OR being held hostage

to demands.

V. WHAT KINDS OF LEGAL ISSUES DO THESE COMPLAINTS RAISE?

1. Workers’ Compensation2. FMLA3. ADA4. OSHA5. Retaliation (ADA, OSHA, Workers’ Comp)6. Whistleblower (OSHA)

VI. BASIC PROTOCOL/FRAMEWORK[Adopt similar framework as anti-harassment/ anti-discrimination protocol]

1. Require that all complaints be made directly to HR

(NOT Operations or Safety – avoid perception of conflict of interest)

2. Have A Written Policy:

Regardless of work environment include an Environmental, Safety and Health Policy in Your Employee Handbook

(Employer Defense)

Make it mandatory that all complaints of workplace environmental, safety and health be reported

(Burden on Employee)

Make it a term and condition of employment to report all known or suspected hazards or unsafe conditions/conduct

(Opens Door for Disciplining for Failure to Comply With Work Rules)

3. Require Complaints Be In Writing; Provide Multi-Purpose Form

Fiction/Myth:“If You Get it In Writing You Are Creating a Bigger Problem”

Fact/Reality: You Can’t Afford NOT to get it In Writing.

Lock in The Story Early On As This Will Become A Moving Target If You Do Not

January 1st:“I think the painting of the lunch room made me feel a bit dizzy this past Monday”

February 1st

Employee Terminated for ongoing performance issues.

March 1st

I reported that for weeks I was having migraines, skin rashes and was vomiting at work because of fumes coming from the lunch room. After I complained of these issues I was fired.

4. Acknowledge Receipt of Complaint

Identify in your acknowledgement what you understand complaint to be

Always include, “Should this not accurately describe the nature of your complaint(s) please immediately notify me so that I make ensure we respond to your concerns”

“Should you have any additional concerns, please identify them and direct them to my attention.”

5. “Investigate” All Complaints- Scope of Investigation Will Depend on Nature of Complaint

- Inspect Area

- Speak to Others

- Is Complainant a chronic complainer

- Determine if Other Complaints Have Been Received In Past

- Consider Key Issues (which follow)

6. Respond in Writing

7. Address Accommodation if Necessary- Let Employee identify what accommodation they are

seeking- Determine If Feasible

8. Follow Up- Has Problem Been Resolved?- If not fixable (Employee Too Stressed Doing Job; Employee

Wants Flooring Changed Because He Claims To Be Allergic To Tile) Have You Made Options Clear to Employee

VII. KEY ISSUES TO CONSIDER:

1. If there is a suspected real problem with environment use outside counsel/consultants.

- Outside Counsel Retains Industrial Hygienist to Conduct Testing To Ensure Attorney-Client Privilege

- Report is Attorney-Client Privileged * Can map out resolution

* May require better ventilation* Mold removal* May be temporary “off gassing”

Mold is everywhere – it is not against OSHA regulations to have mold. It’s a matter of how much mold and whether the levels are so high that it can clearly be established to be a problem.

Off-gassing occurs when new carpet or other materials are introduced. Products release a smell but not harmful.

Law does not require Employers to cater to “special sensitivities” of Employees. May provide reasonable accommodation if available, if not Employee may have to find other suitable employment.

2. Even When There Is Not Necessarily A Suspected “Real Problem” the use of an outside consultant can be a very good way to establish there is no problem for a modest cost.

Keep in mind this will be Exhibit 1 when the employee files a lawsuit under the intentional tort exception to WC.

3. Do not discipline Employee for making complaints about work environment- no matter how frivolous.

Many times this is exactly what the Employee wants (to be gifted with a retaliation claim)

HR may need to retrain management who may want to fire Complainant for making false complaint.

In my experience, there are likely to be performance issues with Employee making frivolous complaints- discipline or terminate based on performance issues, not workplace environmental complaints.

4. Just because Employees work with “chemicals” does not mean the products are harmful. Review Material Safety Data Sheets (MSDSs) for cleaning products or products used in production.OSHA requires MSDS for all products purchased in quantities greater than household use.

Best to buy cleaning supplies etc. from Distributors who will provide the MSDSs

5. Know when to require medical certification from a health care provider and use it when necessary.

OSHA requires employers to provide a workplace that is safe for employees.

NEVER play doctor or make medical determination – no matter how ridiculous the complaint seems (“I am being poisoned by the soap in the restroom dispenser)

Know when to turn it around Provide a letter that employee may give to healthcare provider which identifies the complaints made by employee and requesting that the doctor establish whether it is safe for employee to remain in the workplace and/or what special considerations are required.

6. Do not allow the employee to take control of the situation. Remain calm and steady and Document, Document, Document.

7. Think About The Buckets (Big Picture)

Workers’ Compensation- put carrier on notice if complaint suggests workplace injury or illness. Use WC doctor to evaluate.

FMLA- If absent for 3 or more days due to alleged health condition. Provide FMLA documents. Make sure employee’s accrued paid time off runs concurrently with FMLA.

Running WC and FMLA Leave Concurrently:DOL regulations, 29 CFR 825.702(d)(2), specifically permit the running of FMLA leave concurrent with workers' compensation where the employee's on-the-job injury also constitutes an FMLA-covered serious health condition.

To run FMLA leave concurrent with workers' compensation, Employer need only notify the employee in Handbook that "All FMLA leave time runs concurrent with short term disability and workers' compensation or any qualifying event."  Dotson v. BRP US Inc., No. 07-1375, 2008 U.S. App. LEXIS 5897 (7th Cir. March 21, 2008)

ADA- Do ADA Analysis

Is there a Reasonable Accommodation?

Can Employee perform the essential functions of their job?

ADA/FMLA overlap- Remember leave may be one form of accommodation

OSHA

General Duty Clause: (“The Catch All”)

“Employer must provide a workplace free of recognized hazards “

[Employer’s protocols are designed to establish the absence of a recognized hazard and the Employer’s

prompt remedial action]

*There is no “mold” standard

Retaliation/WhistleblowerEmployees are protected from having Employer take any adverse employment action on account of Employee having engaged in “protected activity”.

Protected Activity- includes making safety and health complaint – even if the premise of the complaint is wrong.

Therefore, many times while Employee complaint has no basis (there is no problem with mold), the Employer “gifts” a retaliation claim by taking adverse employment action and mishandling complaint.

The Martha Stewart Effect: The crime was not that she benefited from the insider information,

The crime was that she lied about it.

Employer Liability:Its not that Billy’s complaint had any merit

Its that he was terminated/demoted/harassed etc. for making it.

THANK YOU