People Processes Q&A: Workplace Safety Questions

Question:

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Do OSHA’s regulations and standards apply to the home office? Are there any other federal laws employers need to consider when employees work from home?

Answer:

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The Department of Labor’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices. The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.

If OSHA receives a complaint about a home office, the complainant will be advised of OSHA’s policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee.

Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office.

The Fair Labor Standards Act (FLSA) and its implementing regulations do not prevent employers from implementing telework or other flexible work arrangements allowing employees to work from home. Employers would still be required to maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements; and to pay no less than the minimum wage for all hours worked and to pay at least one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek to nonexempt employees.

Employers are encouraged to work with their employees to establish hours of work for employees who telework and a mechanism for recording each teleworking employee’s hours of work. Nonexempt employees must receive the required minimum wage and overtime pay free and clear. This means that when a covered employee is required to provide the tools and equipment (e.g., computer, Internet connection, facsimile machine, etc.) needed for telework, the cost of providing the tools and equipment may not reduce the employee’s pay below that required by the FLSA.

Under the Americans with Disabilities Act (ADA), telework could be a reasonable accommodation the employer would need to provide to a qualified individual with a disability, barring any undue hardship. However, an employer may instead offer alternative accommodations as long as they would be effective.

 

Question:

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In light of OSHA’s new reporting and recordkeeping regulations that went into effect on January 1, 2017, are we still required to post the OSHA Form 300A in February?

Answer:

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Yes. You’re not alone in your confusion. While the new regulations did modify certain provisions of 29 CFR Part 1904 (§ 1904.35 – Employee involvement, § 1904.36 – Prohibition against discrimination, § 1904.41 – electronic submission of injury and illness records to OSHA), they did not affect employers’ posting obligations under 29 CFR § 1904.32. Covered employers must still display the OSHA Form 300A, Summary of Work-Related Injuries and Illnesses from February 1 to April 30 in a common area where notices to employees are usually posted.

The new Occupational Safety and Health Administration (OSHA) electronic recordkeeping requirement became effective January 1, 2017 and requires that covered employers must submit injury and illness data to OSHA annually. The annual electronic reporting requirements apply to three categories of employers:

1. Large employers (i.e., establishments with 250 or more employees that are not exempt from OSHA’s recordkeeping rules).
2. “High risk” employers (i.e., establishments with 20 – 249 employees in certain “high-risk” industries (see Chart of OSHA’s “High Risk” Industries for Electronic Reporting for a list of “high-risk” industries covered by the new rule).
3. Any other employers from which OSHA makes a written request for data.

The new reporting requirements will be phased in over the next two years.

For additional information, see OSHA’s webpage on the new regulations.

Question:

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Can you provide us with a sample post-accident drug test policy based on OSHA’s final rule that became effective on August 1, 2016?

Answer:

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We do not recommend or provide a sample post-accident drug test policy. These types of blanket post-accident drug screening policies are problematic under the federal Occupational Safety and Health Administration’s (OSHA’s) new recordkeeping rule because of the strengthened prohibitions against employer retaliation. The final rule does not prohibit drug testing of employees; it only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory, and the rule does not prohibit such testing.

If your company currently has a post-accident testing policy, a best practice is to look at strengthening the pre-employment, random, and/or reasonable suspicion drug testing requirements (per state law and with legal counsel) while relaxing any post-accident testing by limiting it to safety sensitive positions or accidents where it is clear that impairment could cause or contribute to an accident. This will help continue to protect the company as well as worker safety, while protecting an employee’s rights to be free of retaliation for filing a workers’ compensation injury claim.