Safety and Human Resource Law for the Safety Professional

Thomas D. Schneid

• Publisher: CRC Press
• Year: 2019
• ISBN:
  9780429514388
• Edition: 1
• Topic: Technologie et ingénierie
• Subtopic: Santé et sécurité au travail

The purpose of this text to provide a "one stop" source for safety professionals to acquire a general knowledge regarding not only the OSH Act but also laws and standards which impact the safety profession on a daily basis. The safety professional today does not work in a vacuum and decision-making can be impacted by a myriad of other laws. This new book will be the safety professional's "go to" text to acquire a quick understanding of the particular law potentially impacting his/her daily activities.

Features

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• Includes safety laws as well as human resource laws
• Presents new OSHA whistleblower actions
• Encompasses updated contractor requirement under Wage and Hour laws
• Covers new NLRA decisions and actions
• Addresses e-commerce and social media issues involving the safety function

1	The Safety Function and the Law

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Chapter Objectives:

1. Understand the safety and health functions.

2. Understand the correlation and relationship between the human resource and safety functions.

3. Identify the impacts on the safety and health functions.

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The safety and health function in most organizations is all-inclusive. Safety and health professionals do not work in a bubble focusing solely on safety and health regulations and compliance therewith by employees, but function under and are impacted by many different laws and regulations beyond their central focus. Safety and health professionals perform an expansive and important role to safeguard employees as well as equipment, structures, and other assets of the organization. Identification of risks and eliminating or minimizing their impact involves knowledge of the potential risks created through peripheral but potentially impactful laws and regulations beyond the safety and health scope.

The safety and health function, although it may be only one professional, does not work in a silo. In most organizations, the safety and health professional is part of the management team and serves in a leadership role to guide the safety and health efforts of the organization. However, in performing the functions required to ensure the safety and health of all employees, the safety and health function must interact with the laws, regulations, and policies of other functions within the organization, as well as outside of the organization. Given the fact that the safety and health function interacts with employees at all levels within the organizational structure, the safety and health function often works closely with the human resource or personnel function on a daily basis. This frequent interaction between the safety and health function and the human resource function is essential in order to provide the appropriate leadership and guidance to employees with regard not only to workplace safety and health issues, but also operational, quality, and related expectations for each employee by the organization.

The location of the safety and health function within the organizational structure of the company is often unique to the individual company and often has developed throughout the history of the company. For more established companies injecting formalized safety and health after 1970, the safety and health function often started as a compliance-ensuring entity and was aligned with production or quality. As the safety and health function expanded beyond compliance to become a vital component within the organizational structure, companies often designed an internal hierarchy for the safety and health function within the overall organizational structure, ranging from the operational level through the corporate level safety and health functions. Given the expanded role of the safety and health professional and the daily interaction with the human resource function, many companies aligned their reporting structure, especially at operational levels, to permit the safety and health function to report directly to the human resource function, with a secondary reporting line to a corporate safety and health function.

To ensure the efficiency and effectiveness of the safety and health function, many companies found that it made operational “sense” to align the safety and health function with the human resource function, due to the overlapping responsibilities and expertise requirements. In order to achieve a proactive environment which prevents not only accidents but also violations of specific laws relevant to the human resource function, alignment of the reporting structure merged not only the functions, but also the experience and expertise of the functions, permitting overlapping compliance requirements to be addressed in an efficient and effective manner. However, education and training are essential for the safety and health function to become knowledgeable about the laws, regulations, and policies within the human resource function, and for the human resource function to become knowledgeable about the laws, regulations, and policies within the safety and health function.

Often as the result of difficult economic or organizational circumstances resulting in downsizing within operations, safety and health professionals are often tasked with peripheral functions in addition to their safety and health responsibilities, such as security or environmental functions. These peripheral functions often were individual functions under the human resource umbrella prior to the economic downturn; however, they require consolidation for cost-saving reasons. These “slash” positions (e.g., Safety/Security Coordinator) often require new functions to integrate within the human resource function for operational purposes. Although these commingled functions often require a minimalist approach due simply to the number of responsibilities and the time limitations, the survival of the company is often at risk, and the safety and health professional can integrate and apply his/her managerial skills and abilities to the correlated function.

The safety and health professional is often the unofficial “eyes and ears” of the human resource function within the operational setting. Safety and health professionals frequently work within operations, conducting assessments, observations, and related activities within the safety and health function. However, while working within operations, the safety and health professional often observes employee activities which may impact laws, regulations, or policies within the human resource function. It is imperative that the safety and health professional possesses the knowledge and ability to be able to recognize the potential violation and the ability to communicate this information to the human resource function in order that preventative action can be initiated. For example, while the safety and health professional is conducting his/her compliance-related inspection, he/she learns that an employee is upset within the operation. In talking with the employee, the employee explains that she has a very ill family member and asked her supervisor for time off work. The supervisor denied this request. The safety and health professional, with knowledge of the Family and Medical Leave Act (FMLA) and identifying that this could be a FMLA issue, informs the human resource function who can further investigate and talk through the appropriate actions to avoid potential liability for the company.

It is imperative that safety and health professionals possess a working knowledge of the laws, regulations, and policies within the human resource function. Additionally, if working in a unionized operation, it is essential that the safety and health professional have a working knowledge of the collective bargaining agreement and, in a non-union operation, knowledge of the employee handbook. In general, safety and health professionals should possess a working knowledge of discrimination law and be able to recognize situations involving potential discrimination involving pregnancy, age, religion, gender, disability, race, and national origin. Additionally, safety and health professionals should be able to recognize issues involving leave from the workplace including FMLA, short-term and long-term disability (by policy), Americans with Disabilities Act (ADA) and workers’ compensation overlap, and related return to work issues. Safety and health professionals should have a firm grasp of the issues related to employee discipline, employee involuntary termination due to direct impact on the safety and health function, and controlled substance testing.

Safety and health professionals are often tasked with the management of the individual state’s workers’ compensation function. Although the workers’ compensation function is reactive (i.e., the injury or illness has already occurred), whereas the safety and health function is proactive, many organizations tend to commingle these functions within their corporate structure. Safety and health professionals should be aware that each state possesses individual state laws, regulations, and systems, and these laws can overlap with other state and federal laws, as well as internal human resource or company protocols. Given the nature of most state workers’ compensation systems, the state legislatures create the laws and an administrative structure is established within the state government which establishes rules and regulations for virtually every aspect of the workers’ compensation function from rates to duration to care. Safety and health professionals tasked with this responsibility must adhere to these laws and regulations while assisting the injured or ill employee and balancing this with compliance with other laws and regulations. As noted above, it is essential that safety and health professionals have a working knowledge of these laws and regulations so as not to create situations involving non-compliance. For example, an employee is injured on-the-job on a weekend. He/she goes to the emergency room after work and is instructed by the emergency room physician to remain off work for a week. The employee remains at home without notifying his/her supervisor or the company for three days and is subsequently terminated in accordance with the company absenteeism policy (No Call-No Show). Should the doctor’s directive or the company policy take precedence? If the employee is terminated, how will this impact the company’s workers’ compensation costs? Following this case further, the employee has reached maximum medical recovery and is rated at permanency rating of 40% of a whole person. The employee is released to return to work and requests an accommodation to be able to perform the job. Is the employee qualified under the Americans with Disabilities Act? Is the company required to provide accommodation to the employee?

As noted above, the safety and health function is definitely not “siloed” within the organization, and every situation and decision possesses the potential of being impacted other laws and regulations depending on the circumstances and facts of the situation. Given the fact that safety and health professionals work with employees and the human resource function is the primary managing function for employees in many companies, the potential for conflict among and between functions exists in virtually every situation involving any employee. It is essential that safety and health professionals become knowledgeable regarding the policies, protocol, and personnel within the human resource function and investigate each situation thoroughly before finalizing a decision which may have human resource implications. With virtually every decision made by the safety and health professional impacting employees directly or indirectly, careful analysis of potential conflicts with human resource laws, regulations, and policies is essential.

In general, safety and health professionals should possess a working knowledge of the major laws and regulations impacting the safety and health function, as well as an expert knowledge of the specific laws and regulations which are within his/her sphere of direct responsibilities. In general, safety and health professionals should possess an expert level of knowledge with regards to the OSH Act and the numerous standards. This expert level must be maintained on a daily basis with all changes, modifications, or decisions with application within the safety and health structure being noted. Safety and health professionals with concurrent environmental or workers’ compensation responsibilities should possess expert knowledge in the various laws, regulations, and court decisions. Further, in addition to the expert level within these specific spheres of direct responsibilities, safety and health professionals should have a working knowledge of the potential impacting laws and regulations which can be embedded within the specific situation and decision-making process. In general, these laws and regulations include, but are not limited to, the areas of discrimination in the workplace, labor laws, the ADA and laws governing handicap or disability, leave laws (such as FMLA), hiring and recruitment laws, confidentiality laws, and employee records laws.

In the area of hiring, most safety and health professionals do not possess direct responsibilities for the hiring and placement of employees; however, this function, or the impacts from this function, can have a direct correlation to the safety and health function. Hiring, recruitment, and placement errors can result in increased risk probability of workplace accidents and injuries: for example, if an individual is hired for a very physical job function when the individual does not possess the physical capabilities of performing the current job function. Although the new employee may be able to perform the job function successfully over a short period of time, the risk probabilities are substantially increased that the new employee may incur a work-related injury if appropriate job modifications or adjustments are not made to the job function.

The laws and regulations surrounding the hiring and recruitment function have substantially changed as a result of new and impacting laws and regulations as well as technology. Areas such as pre-employment background checks, especially in the areas of criminal background check and financial background checks, have changed as a result of not only federal laws, but also individual state laws. Questions which were historically asked in within the interview process may now be prohibited and can serve as the foundation for discrimination actions. The laws and regulations regarding medical screening, controlled substance testing, and confidentiality of records have substantially changed. Technology, especially in the area of social media, as well as recent legislation and court decisions, have impacted the hiring and recruitment process. At a minimum, safety and health professionals should be aware of the best practices in this important area and ensure that compliance is assured.

As noted abo...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• Foreword
• Preface
• Acknowledgements
• Author
• Chapter 1 The Safety Function and the Law
• Chapter 2 Talent Acquisition and Education: Interviewing, Hiring, and Training
• Chapter 3 Job Descriptions: The Key to Hiring Success
• Chapter 4 Employee Motivation and Progressive Discipline
• Chapter 5 Safety and Employee Behavioral Issues in the Workplace
• Chapter 6 Preparing for OSHA: Standards, Violations, and Actions
• Chapter 7 Violations and Appeal: The Occupational Safety and Health Review Commission
• Chapter 8 OSHA Enforcement and Whistleblower Protections
• Chapter 9 Anti-Discrimination Laws Impacting Safety and Health
• Chapter 10 Family and Medical Leave Act
• Chapter 11 The Americans with Disabilities Act and Safety
• Chapter 12 Federal Wage and Hour Laws
• Chapter 13 National Labor Relations Act and Unfair Labor Practices
• Chapter 14 State Workers’ Compensation Laws
• Chapter 15 e-Workplace: Privacy Laws, Cybersecurity, and Social Media
• Chapter 16 Retirement and Welfare Laws
• Chapter 17 Emerging Issues: Guns, Grass, Drones, and the Safety Profession
• Reference Page – Law Cases
• Index