The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues. In this, the eighth article in the series, we examine the respective rights of employers and employees under the OSH Act and OSHA’s standards and regulations.

Quick Hits

• Employers may find themselves needing to conduct multiple investigations into a single workplace safety incident, with different areas of focus and different legal implications.
• Employers will want to exercise care and diligence when investigating potential violations of workplace rules or procedures that occur in the course of workplace incidents and be mindful of employees’ rights to engage in protected activity surrounding workplace safety.
• Injuries sustained during workplace safety incidents may trigger employer obligations under federal, state, and local disability and leave laws.
• Safety-related employee activities may be compensable under federal and/or state law.

Internal Investigations of Workplace Safety Incidents

Workplace safety incidents often require employers to conduct their own internal investigations—apart from any action by OSHA—to determine whether employees have complied with the company’s standard operating procedures, safety protocols, and other requirements. The best and most effective investigations start before a workplace incident occurs: through artfully drafted and well-disseminated policies and procedures. Clear guidance aids internal investigators in evaluating an employee’s actions against objective standards. Ideally, internal investigators—whether members of an employer’s safety committee or safety managers, human resources professionals, or other managers—will be knowledgeable about the safety protocols and work procedures involved and trained in conducting objective and thorough investigations.

A thorough investigation will include contemporaneous documentation of the process and results of the investigation, which will become key evidence in the event that an employee challenges the results of the investigation through an internal grievance procedure, as part of an OSHA complaint, or in litigation. Although witnesses may be asked to write contemporaneous statements, it may also be useful for the investigator to interview witnesses to ensure that all critical details are collected and documented and to evaluate credibility.

At the conclusion of an internal investigation, employers must typically decide whether there have been violations of safety procedures and protocols, and whether disciplinary action is warranted as to one or more employees. It may be appropriate to consider whether any employees were at fault in or contributed to the incident, an employee’s prior safety record, the fact and severity of any damage to property, and the fact and severity of any injuries that occurred when determining whether and what disciplinary action may be appropriate. Employers may also want to be mindful of their written disciplinary policies, grievance procedures, or collective bargaining provisions pertaining to discipline. In addition, employers may want to ensure that disciplinary documentation accurately describes the basis for the discipline and captures all factors that the employer views as contributing, and provide affected employees direct and clear reasons for their discipline. Employers may want to pause at this stage and ensure that all legal considerations have been addressed, that any disciplinary decision is well-supported, and all legal risks have been considered.

Disciplining or Discharging Employees Involved in a Workplace Safety Incident or Engaged in Protected Activity

The concurrence of a workplace safety incident or safety complaint in close proximity in time to an employee corrective action may lead to a complaint of retaliation. Nearly every statute with employee protections also provides for a claim for retaliation, including the OSH Act, Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), state workers’ compensation laws, and other similar state and local laws. Such claims may arise when an employee is discharged, disciplined, put on a performance plan or demoted after the employee was involved in a workplace accident or injury, reported a safety concern, made a complaint of discrimination on behalf of the employee or others, questioned a pay practice of the employer, participated in an internal or external workplace investigation, or filed an agency charge or formal lawsuit against the employer. It may be prudent for supervisors and managers with decision-making authority to have their intended decisions reviewed and vetted by human resources and/or the employer’s legal counsel where the decision-maker is aware of the employee’s protected activity.

The legal framework of a retaliation claim is typically that an employee claims to have suffered a materially adverse employment action because the employee engaged in protected activity, such as opposing an allegedly unlawful action by the company or participating in an investigation into an alleged unlawful action. Importantly, to succeed on a retaliation claim, an employee need not establish that the employer actually engaged in the action that prompted the employee’s complaint; a retaliation claim may be viable if the employee had a good-faith belief that unlawful activity occurred, even if that belief turns out to be mistaken.

Employees may try to establish a connection between an employment action and a complaint or other protected activity via temporal proximity. An employer’s defense of a retaliation claim typically centers on its ability to demonstrate that the adverse employment action was taken against the employee for a legitimate, nonretaliatory reason. As such, the employer’s contemporaneous documentation of the employee’s conduct or performance issues and a thorough timeline of events may be important evidence in defending against a claim of retaliation. To minimize the potential for a retaliation claim, an employer may want to thoroughly review the employee’s performance or conduct and any proposed corrective action to satisfy itself that the employee is being treated similarly to other employees who engaged in similar performance or conduct but did not engage in protected activity.

There may be tricky issues of timing when administering discipline to an employee who has made an internal or external complaint or engaged in other protected activity. While employers may want to be mindful of the proximity in time to protected activity, an employee who has made a complaint or engaged in protected activity is not insulated from separate and distinct, nonretaliatory discipline.

Leave and Accommodation Issues Related to Workplace Safety Incidents

An employee who has been injured in a workplace safety incident may have additional rights and protections under the FMLA, ADA, workers’ compensation laws, and other federal and state laws. An employer must carefully navigate an employee’s rights and the employer’s obligations under these statutes, sometimes simultaneous to conducting an investigation of a workplace incident or administering discipline related to the incident. In addition, injured employees may be entitled to benefits under an employer’s short-term or long-term disability plans.

While an in-depth review of these laws is beyond the scope of this series of articles, an employer may want to consider that workplace injuries or illnesses may put the employer on notice that the employee has suffered a serious health condition, which would trigger an obligation to notify the employee of his or her rights to FMLA leave. In addition, an employee who has exhausted FMLA leave but cannot yet return to work may be entitled to further leave as a reasonable accommodation under the ADA or under state and local leave laws.

Safety-Related Employee Compensation Issues

Employee compensation issues can result in substantial liability for employers and significant time and resources devoted to navigating a U.S. Department of Labor (DOL) audit or a lawsuit brought on behalf of a class or collective of employees. In addition to common issues regarding the exempt classification of workers, accurately tracking hours worked, and properly calculating overtime pay, employers must navigate both federal and state wage issues that intersect with their workplace safety practices.

Compensable hours worked under the FLSA include time spent on activities that are integral and indispensable to the principal activities, even if such activities occur before or after the start of the employee’s shift. Such compensable activities may include donning and doffing personal protective equipment (PPE), showering at the beginning or end of each workday for safety reasons related to the employer’s principal activities, turning on lights and equipment needed to perform the employee’s work, pre-shift testing of necessary machinery, attendance at safety meetings, and time spent waiting for and receiving medical attention on the employer’s premises or “at the direction of the employer” related to a workplace safety incident.

Read Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, and Part 7