Saving Your Business from the Threat of Occupational Violence

Over the past 15 years, workplace violence has been among the top four causes of death in the work environment, according to federal statistics.

The Occupational Safety and Health Administration says almost 2 million American workers report incidents of workplace violence each year, and “many more” cases go unreported.

Workplace violence is defined by OSHA as any act or threat of physical violence, harassment, intimidation or other threatening disruptive behavior that occurs in the workplace.

To stem this dangerous trend, the federal agency has issued new directives to inspect workplaces that have a “high risk” of violence – primarily health care, social services and late-night retail outlets.

If you operate businesses in any of these high-risk industries, you should be aware that your workplaces now have a greater chance of being inspected by the feds. If your workplace is found to be unsafe because you’ve failed to eliminate or reduce recognized hazards, you can be written up with a citation possibly involving civil and criminal penalties.

To avoid that, be prepared if you get an OSHA inspection and they are looking at violence-prevention measures. Inspectors will want evidence of what you’re doing to help keep violent acts at bay, such as:

  • Training employees on preventing workplace violence.
  • Developing a workplace violence-prevention program.
  • Maintaining working alarm systems and other security devices, such as panic buttons and private channel radios.
  • Reporting and logging any threats and violent incidents.

OSHA inspections can be spurred by a complaint, fatality or violent incident at the workplace. But they can also be a routine scheduled inspection unrelated to any complaint or incident. Inspectors will want to see if you have workplace violence-prevention policies in place.

Weighing ‘known risk factors’

OSHA’s new directive says the agency weighs “known risk factors” in deciding whether to conduct an inspection related to workplace violence. They include whether the jobsite employees:

  • Work with the public, or “volatile, unstable people.”
  • Work alone or in isolated areas.
  • Handle money and valuables.
  • Provide services and care.
  • Are in areas where alcohol is served.
  • Work late at night in high-crime areas.

OSHA will take an initial assessment of businesses in high-risk industries to determine whether an inspection appears to be needed. For instance, if late-night retail outlets such as gas stations, convenience stores and liquor stores seem to have poor interior and parking-lot lighting – something that can attract violence – OSHA may cite the store.

But not all incidents of workplace violence may trigger an OSHA inspection.

For example, if a patient in a psychiatric ward assaults a nurse in a hospital, it will prompt an inspection. The reasoning is that the patient is a known risk factor for a violent outburst, and the employer should take abatement steps such as having two or more employees around unstable clients.

But, in a case in which a disgruntled lover stabs a bookstore employee at work, OSHA may not conduct an inspection if there are no known risk factors, such as if:

  • The bookstore was not in a high-crime area,
  • The incident occurred at 2p.m., and
  • There were five employees present at the time.

OSHA notes that there are “no known prevention measures” for random violent acts in a low-risk setting, like an office, the aforementioned bookstore, a print shop, and more.

The agency website www.osha.gov/SLTC/workplaceviolence/ has recommendations for violence-prevention programs and the latest enforcement procedures for investigating workplace incidents.

Safety Risks Soar as Job Market Tightens

One by-product of a strong economy is more employment, but the increased activity usually results in more workplace injuries.

That’s because there are more inexperienced people on worksites and when a company is busy and there is more activity, the chances of an incident occurring also increase. This is especially the case in manual labor environments from production facilities, warehousing and logistics to construction and other trades.

The September USG + U.S. Chamber of Commerce Commercial Construction Index found that 80% of contractors said that the skilled labor shortage is affecting jobsite safety and it’s the number one factor increasing safety risk on the jobsite.

As business activity grows and the job market tightens, many companies are forced to hire more inexperienced workers who are not skilled at understanding all safety hazards.

Experienced personnel have the know-how to identify workplace hazards and understand the safety protocols for all aspects of their work. While training can help new hires, nothing beats experience.

Additionally, with many businesses working hard to fulfill orders, workplaces are busier, which can cause some workers to cut corners or take risks. Amidst all that hustle and bustle and people moving quickly, the speed and activity can also contribute to accidents in the workplace.

Also, aggressive scheduling may cause employers to use workers with less experience or training, and can push employees to work longer hours, which can lead to shortcuts and compromised processes. If employees are working overtime, they may also be tired and fatigued, which can contribute to poor judgment and workplace incidents.

One other issue that’s affecting workplace safety and is related to the tight job market is that employers are often having to settle for workers they may not normally hire in other times. As you know, the scourge of opioid addiction has been rampant and unfortunately if someone who has an addiction is hired, they may be a serious liability for the employer.

Not only that, but more states are legalizing recreational marijuana and nearly 40 states have medical marijuana laws on the books. In many cases, people can easily get their hands on a medical marijuana card without an affliction that would require a prescription.

Here’s what’s concerning construction employers on the worker addiction front, according to the USG + U.S. Chamber of Commerce Commercial Construction Index:

  • 39% were concerned about the safety impacts of opioids.
  • 27% were concerned about the safety impacts of alcohol.
  • 22% were concerned about the safety impacts of cannabis.

The report showed that while nearly two-thirds of contractors have strategies in place to reduce the safety risks presented by alcohol (62%) and marijuana (61%), only half have strategies to address their top substance of concern: opioids, which is a growing issue.

What you can do

In this environment of labor shortages and high competition for workers, employers should focus on:

  • Creating a culture of safety.
  • Improving the safety climate in the worksite.
  • Improving the firm’s safety culture.
  • Providing more leadership training for supervisors.
  • Tracking near misses and injuries, and identifying the factors that led to the near miss or accident.
  • Ensuring accountability at all levels.
  • Demonstrating management’s commitment to safety.
  • Empowering and involving employees in the safety process.

Tackling substance abuse safety risks

The top strategies employers are using to reduce safety risks caused by substance abuse are:

  • Testing
  • Prescreening before hiring
  • Education
  • Communication oversight by supervisors
  • Zero tolerance policies
  • Counseling
  • Access to rehab.

The Health of Your Drivers May Be Hurting Your Business

Semi Truck Preparing to Drive

Most goods in the U.S. are delivered by truck. Trucking companies, businesses that deliver their own product and their customers rely on well-functioning vehicles and drivers for the success of their operations.

Too often, though, driving a truck is not conducive to good health. That can spell trouble for the drivers and for the profitability of their employers.

There are a number of factors about the truck-driving occupation that contribute to poor physical health, including:

  • Drivers are hired to sit all day behind the wheel, with limited opportunities for exercise.
  • They eat at truck stops and other restaurants where they can get meals quickly, contributing to poor diets.
  • Their work schedules are not consistent, interfering with sleep patterns.
  • The job is stressful. They have to contend with the annoyances and hazards of the road all day long, including traffic delays, dangerous drivers, and poor weather. On top of that, they are under pressure to reach their destinations on time. This gives them incentives to skip on sleep and ingest stimulants to help them stay awake.

Not surprisingly, studies have found that:

  • The obesity rate for truck drivers is double that of the general population.
  • Their smoking rate is almost triple that of the general population.
  • 88% of truck drivers report having hypertension, smoking or obesity, and 9% reported having all three, quadruple the general population’s rate.
  • Truck drivers’ life expectancy is 16 years less than the national average.
  • Unhealthy drivers do not perform their jobs as well as healthy ones do.
  • Among private sector employees, truck drivers have the highest number of illnesses and injuries that cause them to miss work.

A 2017 study found that drivers with three or more serious health conditions like the ones mentioned above are two to four times more likely to have an accident than are those with only one.

One common affliction for many drivers is sleep apnea. Drivers who have untreated sleep apnea are five times more likely to have a preventable accident than are those who treat it.

What you can do

What can you as an employer do to maintain a healthy driving force? Plenty.

  • During the pre-employment screening process, evaluate candidates’ fitness levels through physical examinations and a review of their driving histories.
  • Review employer safety policies and driver wellness and fitness requirements during new employee orientation.
  • Implement injury prevention programs.
  • Offer free or discounted memberships at gyms with locations around the country.
  • Encourage drivers to take quick exercise breaks during trips.
  • Encourage healthy eating both at home and on the road.
  • Monitor drivers’ performance through data provided by telematics devices installed in trucks, review of accident reports, and in-person observation of drivers.

The takeaway

If a truck driver suffers a heart attack or dozes off while hauling a load weighing tens of thousands of pounds, the results can be catastrophic. In addition to the lives lost or forever changed, the cost to the employer could be millions of dollars in jury awards.

Making driver wellness a priority is the right thing to do, but it also makes business sense for employers.

Limiting Your Liability During the Company Holiday Party

With the fallout from the #MeToo movement forcing employers to change their internal conduct policies, they are also reassessing the office holiday party.

While gatherings can be a good time for your staff to mingle casually with their colleagues and clients, they can also prove to be a liability for businesses – particularly if you serve alcohol.

Not all companies are canceling holiday parties, though. Some are being a little more careful and limiting or eliminating alcohol served at holiday celebrations.

If you are throwing a holiday party, you should take steps to limit risks and make sure you are protected with proper insurance coverage.

Your biggest concern should be intoxicated workers leaving the party and driving. Almost all states have liquor liability laws that allow an injured third party to sue not only the person who injured them or damaged their property, but also the individual or organization that overserved them alcohol.

While these laws were originally written to cover bars and other establishments that serve alcohol, they have been extended to cover “social hosts,” which include:

    • Employers that hold events where they serve alcohol.
    • Individuals or groups that hold events (including weddings and summer barbeques).

Limiting your liability

Experts recommend that you take steps to limit your liability:

  • Lay down the ground rules – You should hold a meeting and create documentation for your employees to sign that spells out their duty to act responsibly and treat all other staff with respect. This should also include advising them to drink in moderation and not drink and drive.
  • Lead by example – Management should model the behavior they expect from everyone at the party: polite conversation and drink in moderation, if at all.
  • Hold the party offsite – This is a smart move because if there are issues that occur, it’s best they don’t happen at your place of business.
  • Consider not serving alcohol – This is the safest bet to ensure you are not vicariously liable for any intoxicated employees.
  • Use different approaches if you serve alcohol – If you do plan to serve alcohol, consider requiring your staff to pay for drinks. This also has the effect of people drinking less if it’s on their dime. Another option is to issue drink vouchers to limit the amount of drinks each person can have.
  • Hire a professional bartender  – Most bartenders are trained to detect signs of intoxication and are better able to cut someone off in a professional and polite manner.
  • Offer alternative beverages  – You should also offer non-alcoholic beverages, and always serve food so people don’t drink on empty stomachs.
  • Stop serving towards the end of the party  – Stop serving alcohol at least one hour before the end of the party, and instead bring out the coffee, tea and soda.
  • Arrange transportation  – If you are serving alcohol, you should make special transportation arrangements before the party. Encourage your employees to take advantage of the transportation for their and the public’s safety if they have had drinks.

Insurance considerations

If you have liability concerns, you should call us to discuss your current commercial general liability coverage to make sure that it doesn’t have any exclusions or conditions for these kinds of risks.

If you have gaps, you may want to consider special event coverage that would cover liquor liability and other liability exposures specific to the event.

We can help you check your policy to see if liquor liability is covered by your CGL policy.

If there is any harassment at the party that could put you in the crosshairs for a harassment lawsuit, you could also be sued. This kind of action would not be covered by your CGL policy, but it would be covered under an employment practices liability insurance policy.

An EPLI policy will extend coverage to your business for any discrimination, sexual harassment, emotional distress, and other workplace-related charges. The policy should include third party coverage, which covers claims made by non-employees, usually clients or customers, who allege that an employee engaged in wrongful conduct such as sexual harassment or discrimination.

Marijuana Laws Require New Workplace Policies

Marijuana Medical Fast Shipping Express Delivery OnLine

As states continue to liberalize marijuana use, employers are left in a bind in terms of enforcing no-drug policies, respecting their employees’ right to privacy and keeping a safe workplace.

While a majority of states have medical marijuana laws on their books, only a handful of states require employers to accommodate (to a degree) staff who use medical marijuana. And many states, including California, have established case law stating that employers do not have to accommodate someone who has a medical marijuana prescription.

Complicating matters for employers, more states are legalizing recreational marijuana.

Since employers have to balance their legal obligations to their employees, they also have to be able to ensure they have a safe workplace that is free of drugs. Here’s a guide to the main issues facing employers:

ADA compliance

The Americans with Disabilities Act prohibits employers from discriminating against employees on the basis of a disability, and the law requires employers to provide a reasonable accommodation to them if needed. The word “reasonable” is there to ensure that the accommodation does not impose any undue hardship on the employer.

Often, medical marijuana is prescribed to people with disabilities who are considered protected individuals under the ADA. In many cases, the use of marijuana can be vital in allowing a disabled worker to do their job and also perform major life activities.

While the ADA bars discrimination against individuals with disabilities for employment purposes, courts in many states have ruled that medical marijuana use is not a reasonable accommodation.

But, in 2008, the California Supreme Court ruled that employers have a right to drug-test and fire patients who test positive for marijuana, regardless of their medical use.

It based its decision on the fact that because the state’s Fair Employment and Housing Act does not require employers to accommodate illegal use, an employer can lawfully terminate an employee who uses medical marijuana.

More recently, in 2012, the Ninth Circuit similarly held that the ADA does not offer job protection for medical marijuana users because marijuana is an illegal substance under federal law.

That said, as medical marijuana becomes more accepted, companies may want to consider revising their policies to include accommodations for use.

One way to do this is to create policies that bar marijuana use in the workplace, particularly smoking or vaping, but be more forgiving with use outside of work hours. If you also drug-test, you’ll need to make exceptions as employees can show positive for drug use at work even though they may have used marijuana the day before at home.

Your policies should take into account that you have a legitimate interest in ensuring that any medications the employee takes are used in a responsible manner and will not affect job performance. Your company policy could state that a prescription for medical marijuana does not entitle an employee:

  • To be impaired at work.
  • To compromise his or her safety, or the safety of others.
  • To smoke in the workplace.
  • To unexcused absences or late arrivals.
Recreational-use states

If you have a business in one of the handful of states that has legalized recreational use of marijuana, you should consider revising your company’s drug policies.

While you cannot legally bar employees from using cannabis outside the workplace, you can regulate them using it on the job or showing up intoxicated at work.

One good solution is to model your recreational marijuana policy after your current policies on alcohol.

To cover your operation, you should probably prohibit employees from smoking marijuana at the office or to come to the workplace under the influence of any psychoactive substance. The policy should outline the specific consequences for breaking the rule.

Some employers may consider prohibiting marijuana use in a recreational-use state and continue drug-testing of workers. But this approach could run into legal challenges and would be difficult to enforce if the employees are not using on the job.

The exception should be for workers that operate heavy machinery, or work in construction, transportation or other dangerous occupations. In these jobs, working under the influence of marijuana should be strictly prohibited, just as on-the-job alcohol use is. Companies can also alter drug-screening guidelines to exclude cannabis during routine drug tests.

Since the effects of marijuana can last many hours, you will also specifically need to spell out the rules for lunch breaks. Employees should be able to return from their breaks and be ready to start work again without being under the influence.

The takeaway

Overall, while it seems daunting, these issues will get ironed out over time. For now, you should try to set policies that will ensure that you can keep a safe workplace, while respecting employee privacy.

Over time, the policies that will be recommended for employers are likely to be similar to those for alcohol use and intoxication in the workplace.

Cal/OSHA Issues Emergency Rules for Posting Injury Forms Electronically

Financial Figures Data Analyzing

Cal/OSHA is implementing emergency regulations that require California employers with 250 or more employees to submit their 2017 Form 300A summaries electronically by the end of this year. That’s the form that you signed and posted in your workplace from Feb. 1 to April 30.

Form 300A contains only the summary of injuries and is not the actual log, which contains the names of the employees who were injured.

For the electronic filing, you will simply take the same information on the form you posted earlier this year and enter it into an electronic database.

The short ramp-up period will require employers to quickly act to comply with the emergency regulations, which were approved by the state’s Office of Administrative Law in early November. The new regulations were implemented on an emergency basis to put California’s regulations on par with those of Federal OSHA.

Who do the new rules apply to?

The new regs apply to the following employers:

  • Those with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations.
  • Certain employers with 20 to 249 employees in specific industries that are listed in Appendix H of the emergency regulations.

Among the industries in the latter category are:

  • Agriculture
  • Construction
  • Manufacturing
  • A number of retail businesses
  • Transportation
  • Warehousing
  • Health care

You can find a full list of the above industries on pages 8-10 in Cal/OSHA’s emergency regulations: www.dir.ca.gov/dosh/doshreg/Recording-and-Reporting/Text-of-Amended-Regulation-Revised.pdf

Employers that do not have to fill out OSHA logs include:

  • Those that had 10 or fewer employees during the entire year; and
  • Those that have 20-249 employees, but their industry does not fall within the list of “high-risk industries,” as above.

After this catch-up period at the end of the year, all applicable employers will be required to submit their Form 300A electronically every year going forward.

Until Cal/OSHA promulgates new regulations to make that a permanent rule, the agency advises all applicable employers to follow the instructions on Fed-OSHA’s “Injury Tracking Application” webpage: www.osha.gov/injuryreporting/index.html

Cal/OSHA will be implementing its own online tool and when it does, we will notify you.

Do You Have an Emergency Action Plan?

Evacuation plan macro

How would you escape from your workplace in an emergency? Do you know where all the exits are in case your first choice is too crowded? Are you sure the doors will be unlocked and the exit access, such as a hallway, will not be blocked during a fire, explosion or other crisis?

Knowing the answers to these questions could keep you safe during an emergency. And the answers should be readily available to all of your staff in your organization’s emergency action plan (EAP).

Almost every business is required under Occupational Safety and Health Administration standards to have an EAP. The purpose these plans is to facilitate and organize employer and employee actions during workplace emergencies.

Well-developed emergency plans and proper employee training (that helps workers understand their roles and responsibilities when executing the plan) will result in fewer and less severe employee injuries and less structural damage to the facility during emergencies.

A poorly prepared plan likely will lead to a disorganized evacuation or emergency response, resulting in confusion, injury and property damage.

Putting together a comprehensive EAP that deals with issues specific to your worksite is not difficult. It involves taking what you learn from conducting a workplace evaluation and describing how employees will respond to different types of emergencies, taking into account your worksite layout, structural features and emergency systems.

If you have 10 or fewer employees, you may communicate your plan orally. For firms with more than 10 employees, the plan must be written, kept in the workplace and available for employee review.

Although employers are required to have an EAP only when the applicable OSHA standard requires it, OSHA strongly recommends that all employers have an EAP.

Important elements

A few of the important elements of an EAP include:

  • Procedures for reporting fires and other emergencies.
  • Procedures for emergency evacuation, including the type of evacuation and exit route assignments.
  • Procedures for employees who stay behind to continue critical plant operations.
  • Procedures to account for all employees after evacuation.
  • Names or titles of employees to contact for detailed plan information.
  • Alarm system to alert workers.

In addition, designate and train employees to assist in a safe and orderly evacuation of other employees.

Review the EAP with each employee covered when:

  • The plan is developed or an employee is assigned to a new job,
  • Employees’ responsibilities under the plan change, or
  • You change the EAP.

Reducing Workplace Stress Is Vital for Safety, Retention, Production

Young secretary overwhelmed by work

During our economic recovery one element that has been persistent is that employers are trying to get more out of their workers than ever before.

And while most managers and owners try to ensure that their workers are provided a safe workplace and put a premium on reducing the chances of accidents, one often overlooked area is employee stress.

Heaping too much stress or too many responsibilities on a single employee can greatly increase their chances of not only burnout, but also making costly mistakes. A worse-case scenario is that if they are engaged in more labor-intensive occupations, too much stress can lead to accidents.

Think your employees aren’t stressed? A recent study by Mental Health America, “Mind the Workplace,” found that:

  • 81% of employees think that job stress affects their relationships with family and friends, at least sometimes.
  • 63% think that their workplace is unhelpful or hostile such that they want to work alone.
  • 66% don’t trust their co-workers or team to support their work activities.
  • 17% believe that their company appropriately deals with employees who don’t do their job.

There are a number of consequences for an overly stressful work environment:

  • Drug and alcohol abuse
  • Other medical issues
  • Depression
  • Worsened productivity
  • Trouble concentrating
  • Making mistakes
  • Causing accidents
  • Absenteeism and presenteeism.

What you can do

All of the above can have a detrimental effect on your workplace and worker health, as stress can lead to a myriad of health issues.

Employers have to wrestle with a fine balancing act of requiring employees to meet quotas and complete all of their tasks, and pushing them too hard. Here are a few tips to help reduce stress among your workforce:

  • Recognize your workers for a job well done.
  • Be supportive of workers experiencing hard times, like paid time off and assistance with their workload.
  • Make sure that management treats everyone fairly and does not show favoritism.
  • Set realistic, clear goals and expectations of your staff.
  • Management should lead by example, meaning that they should display the same work ethic that they expect of their staff.
  • Promote a safe work environment and have supervisors and management reinforce your commitment to safety.
  • Hold everyone accountable for their work.
  • Encourage mindfulness in your team.
  • Offer flexible work schedules.
  • Encourage your employees to get up and move regularly.
  • Provide an employee assistance plan as part of your benefits package.

Raft of Sexual Harassment Laws Puts Pressure on Employers

California Gov. Jerry Brown has signed into law a number of bills that will drastically change the landscape for employers trying to resolve sexual harassment and discrimination claims.

Brown signed three bills that will make it easier for workers to bring claims of harassment and discrimination in the workplace, and curtail the ability of employers to resolve the claims with motions for summary judgment.

They will also prohibit non-disclosure agreements, and will expand the number of employers that will be required to provide anti-sexual-harassment training to their staff.

Any organization with employees needs to be aware of the new laws to avoid any future legal quagmires, as failing to comply with some of these laws could drastically increase an employer’s liability.

Here’s a rundown of what you need to know:

SB 1343

Existing law requires that organizations with 50 or more employees provide two hours of sexual-harassment prevention training to supervisors every two years. This was mandated two years ago under another piece of legislation, AB 1825.

The new law expands this training requirement to all employers in California with five or more employees.

But SB 1343 goes beyond requiring only supervisors to be trained by also requiring that it must be provided to all employees every two years.

SB 820

This law takes effect Jan. 1, 2019 and will bar California employers from entering into settlement agreements that prevent the disclosure of information regarding:

  • Acts of sexual assault;
  • Acts of sexual harassment;
  • Acts of workplace sexual harassment;
  • Acts of workplace sex discrimination;
  • The failure to prevent acts of workplace sexual harassment or sex discrimination; and
  • Retaliation against a person for reporting sexual harassment or sex discrimination.

The big issue employers will need to watch out for, according to experts, is that the new law could actually keep the employer and employee from reaching resolutions for disputes.

SB 1300

This new law bars other nondisclosure agreements related to claims of sexual harassment, and also overturns prior court rulings that have limited harassment lawsuits.

SB 1300 bars employers from requiring an employee to sign a release of a Fair Employment and Housing Act claim or signing a non-disparagement or nondisclosure agreement related to unlawful acts in the workplace, including sexual harassment in exchange for a raise or bonus, or as a condition of employment or continued employment.

One good thing, the prohibition does not apply a “negotiated settlement agreement to resolve an underlying claim under [FEHA].”

The new law will also make it more difficult to collect attorneys’ fees and costs. Now they will only be granted if the court finds that the action was “frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.”

SB 1300 also expands current law under which an employer can be held responsible for sexual harassment committed by non-employees like clients, vendors and other third parties, if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.

Now employers can be held responsible for all forms of unlawful harassment committed by non-employees, not just sexual harassment.

The law also includes an unusual section on “legislative intent,” which is language that was designed as guidance for the courts but is not legally binding. It includes:

  • Single incident grounds for a claim – The new law declares that a “single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.”
  • Stray remarks doctrine – Even a single discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decision-maker, may be relevant and circumstantial evidence of discrimination.
  • Summary judgments – Harassment claims are “rarely appropriate for summary judgment.” According to the law, summary judgment is a motion usually filed by the defendant to have the case thrown out before trial.