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Gil Sparks | Employers should be aware of new federal rules

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This month’s column is a summary of some regulatory updates affecting many local businesses.

First, effective Aug. 1, the United States Department of Labor issued two new workplace posters that need to be displayed by all employers regarding the Fair Labor Standards Act minimum wages (see https://www.dol.gov/whd/regs/compliance/posters/flsa.htm) and the Employee Polygraph Protection Act (see https://www.dol.gov/whd/regs/compliance/posters/eppa.htm).

Many employers subscribe to a service that that provides them with updated posters when issued. If your business does not have such a service, the posters can be located online at the above addresses.

Second, the Occupational Safety and Health Administration (OSHA) recently issued a new rule (scheduled to be effective Nov. 1) that may limit the circumstances in which an employer may require drug testing after a workplace injury.

The new rule provides that employers must “establish a reasonable procedure for employees to promptly and accurately report work-related injuries and illnesses.” The new procedure must not “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

While the rule does not specifically mention drug testing policies, the commentary to the regulations do state that “automatic post-injury drug testing is a form of adverse action that can discourage reporting.” OSHA is taking the position that such automatic drug testing will only be OK if the employer can establish ahead of time that employee drug use likely contributed to the underlying incident and if the testing methods are tailored to identify impairment during an incident ( as opposed to identifying general prior drug use).

OSHA’s commentary indicates that if an employer is required by law to conduct mandatory drug testing following a workplace accident or injury that such testing will not violate OSHA’s new rule.

The new rule also expands OSHA’s ability to issue citations and increased the amount of potential fines. Once the new rule takes effect, OSHA will now be able to fine employers more often and for greater amounts.

Employers should review drug testing policies to determine if those policies comply with OSHA’s new rule. If not, then employers should revise their policies to allow testing only when the employer has a reasonable belief drugs or alcohol could have been a factor in an accident or if required by law.

Third, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on handling retaliation in the workplace (see Final Enforcement Guidance on Retaliation and Related Issues). The EEOC also issued a “Q&A” sheet that summarizes the Guidance, and a “Small Business Fact Sheet” that addresses the main points in non-legal language.

The latest statistics available indicate almost 45 percent of all EEOC discrimination charges included a retaliation claim.

The Guidance suggests employers should implement certain policy, training and organizational changes to minimize the likelihood of retaliation claims, including:

♦  Having a written plain language anti retaliation policy

♦  Providing training for all managers, supervisors and employees on the policy and making sure management informs employees that retaliation will not be tolerated

♦  Requiring those members of management making employment and employment related decisions to identify and document the reasons for taking adverse employment actions

These actions continue to point the ongoing efforts regulating employers actions in the workplace. All employers should check with their legal counsel to help understand and insure compliance with these new requirements.

Gil Sparks is Of Counsel with the law firm of Ogden Murphy Wallace and a former human resources manager. He has been assisting employers with handling workplace issues and regulations for over 28 years.