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Employment Law Update

The workplace in 2020: political talk, COVID-19 violence, executive order

By Mike O’Brien bio

 Don’t forget labor relations rules when employees talk politics at work

During this month’s contentious election season—with a highly polarized American electorate—many employers may be grappling with problems arising from workplace political discussions. Research by the Society for Human Resource Management (SHRM) has indicated that more than a quarter of workers report regularly talking about politics at work. Disputes and tension often result.

Employers wishing to regulate political speech at work should remember that the National Labor Relations Act (NLRA) may affect their options. Although employees often assert that they have a First Amendment right to free speech, this is a misconception. The First Amendment restricts government action, not that of private employers. However, Section 7 of the NLRA gives employees the right to talk to each other about issues related to terms and conditions of employment. As a result, employee discussions about issues like minimum wage requirements, paid leave laws, and healthcare (and which candidate’s position on such issues they prefer) may actually be protected by the NLRA. Employers may run afoul of the law and commit an unfair labor practice by interfering with such speech.

Employers who are unsure whether an employee’s political speech implicates the NLRA may wish to seek advice from employment law counsel. Employers should also be aware of any applicable state laws that may limit employer responses to employee political activity at work.

CDC offers strategies to limit workplace violence related to COVID-19

By now, we’ve all seen the flood of cell phone videos and security footage of frontline store workers being attacked and even assaulted by irate customers over masking and other COVID-related requirements. The Centers for Disease Control and Prevention recently offered tips for limiting such workplace violence. The CDC’s suggestions are particularly focused on employment in retail, services, and other customer-facing businesses. CDC notes that employees in such businesses are at increased risk of violence as companies implement disease prevention practices and local public health orders, including mandatory masks, social distancing, and limits on the number of customers allowed in a facility at a time. Strategies the CDC recommends for employers include:

  • Offer customers options such as curbside pickup, home delivery, and alternative shopping hours.
  • Post signs notifying customers about disease-prevention requirements (e.g., masks, social distancing, and maximum number of customers). Display the same information on company websites.
  • Provide employee training on workplace violence prevention and response, including “threat recognition, conflict resolution, [and] nonviolent response.” This includes having a designated safe area where employees can go if they feel threatened.
  • Have a plan, and make employees aware of what to do in the event of workplace violence (or threatened violence).
  • When possible, consider assigning at least two workers to work together when encouraging compliance with COVID-prevention policies. Make sure employees do not attempt to force anyone who appears upset or violent to follow COVID-19 prevention policies.”

For more information, go to CDC guidance on COVID-related violence.

OSHA COVID-19 reporting guidance updated

On Sept. 30, 2020, OSHA issued an updated guidance on reporting requirements for workplace-related COVID-19 cases. The new guidance comes in the form of three questions and answers, outlining reporting requirements for work-related hospitalizations and fatalities due to COVID-19, how to make such reports, and the information required. OSHA notes that federal regulations require reporting of in-patient hospitalizations only when the hospitalization “occurs within 24 hours of [a] work-related incident.”

For COVID-19, this means an in-patient hospitalization due to the disease must occur within 24 hours of a workplace exposure to be reportable. The reporting obligation is triggered when the employer knows both: (a) that an employee has been hospitalized; and (b) “that the reason for the hospitalization was a work-related case of COVID-19.” Once an employer learns both facts, the case must be reported within 24 hours.

OSHA applies a different rule to fatalities. “A fatality due to COVID-19 must occur within 30 days of an exposure to [coronavirus] at work” to be reportable, and an “employer must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19.” Again, once an employer learns both facts, the reporting obligation is triggered and the eight-hour timeframe applies. For both hospitalizations and fatalities, OSHA cautions employers that even though there are some limitations on what is reportable, those limitations do not change an employer’s recordkeeping obligations for illness and injury.

Finally, OSHA advises that required reports may be made by calling the nearest OSHA office or the 24-hour hotline, or through online submission. Reporting employers should provide the names of the business and affected employee(s), the location and time of the incident and a brief description of it, and contact information for follow-up by OSHA. To read the new FAQs in full, go to: OSHA FAQ COVID reporting.

OSHA proposes penalties against employers totaling nearly $1,000,000 for COVID-19 violations

On Oct. 9, 2020, The U.S. Department of Labor announced that OSHA has issued citations to 62 establishments for COVID-19 violations, with proposed penalties totaling $913,133. Violations have included failure to report injury, illness, or fatality (see above), recordkeeping lapses, failure to “implement a written respiratory protection program; [p]rovide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment,” and failure to “[c]omply with the General Duty Clause of the Occupational Safety and Health Act of 1970.” OHSA news release on penalties. Notably, 25 of the 62 citations were issued in the one-week period between Sept. 25 and Oct. 1, 2020. Employers with questions about their OSHA reporting obligations may wish to consult with employment law counsel. Information about individual citations is provided by OSHA at its Establishment Search Website, found at: OSHA establishment citations website.

Secretary of Labor discusses executive order regarding race/sex stereotyping

In our last update, we discussed a new executive order issued by President Trump to combat a perceived ideology that America is “inherently sexist and racist.” Executive Order 13950 took aim at so-called “divisive” workplace training concepts. Recently, Secretary of Labor Eugene Scalia spoke about the order, saying:

“I should be clear about what the President’s new Order does not do. It does not prohibit workplace training about non-discrimination and equal opportunity—that training is important, the Department of Labor encourages it, and in some instances we require it. Nor does the Order prohibit the diversity training offered by countless America employers; training that, like my remarks today, emphasizes the importance of recognizing the value and worth of people of all races and creeds. American employers should value diversity and take extra strides to assure opportunity for those who in the past have been denied it—although they must do so in a way that does not discriminate against others based on race, ethnicity, or other protected characteristics. Finally, the President’s Order does not prohibit trainings about pre-conceptions or biases that people may have—regardless of their race or sex—about people who are different, and which could cause slights or even discrimination that’s not intended. What the Order does prohibit, though, is instruction in which federal contractors tell workers that because of their particular race or sex, they are racist, morally culpable, or less worthy of being heard.”

See: DOL news on executive order. Because of the uncertainty many employers feel about training programs in light of Executive Order 13950, national SHRM has indicated that it may join members of the business community in urging that the order be withdrawn and that the Administration and business community work together to ensure that appropriate workplace training programs are supported. Meanwhile, employers with questions about workplace training may wish to consult experienced employment law counsel. Stay tuned to these updates for further developments









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