EMPLOYMENT LAW "SOUP OF THE DAY"

Welcome to another serving of "Employment Law Soup of the Day", where we look at the sometimes less than appetizing developments facing employers and HR professionals.  Topping the menu today is the Occupational Safety and Health Administration's ("OSHA") new position regarding mandatory drug/alcohol testing of employees  following involvement in a work-place accident.

It’s a very common practice among many employers to require such mandatory testing following an accident or injury, and it is usually spelled out in their drug/alcohol testing policies.  Employers also frequently require such mandatory testing as part of their workers’ compensation coverage, because in most states, being intoxicated or impaired at the time of a workplace accident can bar an employee’s entitlement to benefits.  The fact that such a neutral policy applies to anyone who is involved in an accident also removes the risk of claims of discriminatory testing.  It is also common sense that employers would want to know if an employee’s drug or alcohol use caused or contributed to a workplace accident.

However, under new anti-retaliation provisions in its new injury and illness tracking rule, OSHA has taken the position that such mandatory or “blanket” post-accident testing can discourage employees from reporting accidents and can be considered an illegal act of retaliation unless the employer had an “objectively reasonable basis for testing” under the individualized circumstances of the accident. As stated in guidelines issued on October 19, 2016:

When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred. OSHA will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs. The general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.

 Enforcement of the anti-retaliation provisions was to have gone into effect in August 10, 2016, but OSHA has now delayed enforcement until December 1, 2016 to allow a federal court in Texas to rule on a legal challenge to the anti-retaliation restrictions involving post-accident testing. The suit seeks to block enforcement while the lawsuit is pending.  The Employee with the Dragon Tattoo will be following the case and will keep you updated.

Next on the menu is the Equal Employment Opportunity Commission’s (“EEOC”) five-year plan or more specifically, its Strategic Enforcement Plan 2017 – 2021 (“SEP 2017-2021”), which it unveiled earlier this month.  In its earlier Strategic Enforcement Plan 2013 -2016, the EEOC outlined its investigation, enforcement and litigation strategies and states the following nationwide priorities: (1) eliminating barriers in recruitment and hiring, (2) protecting immigrant, migrant and other vulnerable workers, (3) addressing emerging and developing issues, (4) enforcing equal pay laws, (5) preserving access to the legal system, and (6) preventing harassment through systemic enforcement and targeted outreach.

In addition to its earlier stated priorities, the EEOC says its SEP 2017-2012 will focus on alleged backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, referencing terrorist attacks in the United States and abroad which the EEOC believes have increased the likelihood of discrimination against these communities.  The EEOC also will target what it perceives as a lack of diversity in the technology industry, as well as “issues related to complex employment relationships in the 21st century workplace”, such as temporary workers, , independent contractor issues, and the on-demand or “gig” economy.

Lastly, a follow-up on an interesting religious discrimination case I first reported on back in 2014, involving a belief system called “Onionhead”.  The EEOC sued a New York-based health network on behalf of ten employees, for allegedly coercing the employees to participate in religious practices and terminating those employees who objected or did not participate fully.  According to the EEOC, the Onionhead religion “included group prayers, candle burning, and discussions of spiritual texts. The religious practices are part of a belief system that the defendants' family member created, called Onionhead. Employees were told to wear Onionhead buttons, put Onionhead cards near their work stations and keep only dim lighting in the workplace.  The company in turn argued that Onionhead was not a religion, but was simply a cartoon character used to develop workplace problem solving and conflict resolution skills, and to improve communication and foster teamwork. 

As I noted back in my original article, if a client approached me about implementing such a program in the workplace, I would consider it “just asking for trouble” and would strongly advise against it.  Under Title VII’s prohibition against religious discrimination, the definition of a religion is construed very broadly, and as described, the Onionhead program appeared to carry many of the trappings of a religious belief, including images of the cartoon character “Onionhead” surrounded by cartoon angels.

Well, on September 30, 2016, a New York federal district court Judge granted the EEOC’s motion for partial summary judgment as to the specific issue of whether the Onionhead beliefs constituted a religion.  In a 102 page opinion, the district court ruled that for purposes of Title VII, Onionhead was a religion, allowing the case to proceed to trial.  Reportedly, the employer is seeking to have the district court judge reconsider her decision, while the EEOC argues the employer’s proposed motion for reconsideration would be futile and result in undue delay of the trial.

While the Onionhead lawsuit is not your ordinary “failure to accommodate” religious discrimination case, it serves as a warning of the need for proper training of supervisors, especially in light of the recent Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc.  Until the next “Employment Law Soup of the Day”, bon appétit!

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