DOH! Nuclear Safety Regs Trump ADA Accommodation Request (Thankfully)In a battle between a mentally ill employee seeking accommodation for his job at a nuclear plant and federal nuclear safety codes—-which wins out? The Third Circuit Court of Appeals ended up going with safety codes.

Looking Out for an Erratic Employee

Mr. Daryle McNelis was an armed security guard at Pennsylvania Power and Light’s (PPL) nuclear power plant in Susquehanna. As a nuclear power plant operator, PPL was required by the Nuclear Regulatory Commission (NRC) to have a “fitness for duty” program to show that no employees were mentally or physically impaired in any way that would affect their ability to safely and competently perform their duties. In addition, the NRC required PPL to monitor employees who had access to sensitive areas of the plant to make sure that those employees did not constitute an “unreasonable risk to public health and safety or the common defense and security.” This required employees in those positions to undergo a psychological assessment and be under a “behavioral observation program” to identify aberrant behavior. If an employee’s trustworthiness or reliability was determined to be questionable, the NRC required that PPL terminate the employee’s access.

McNelis had unrestricted access and was responsible for protecting vital areas from radiological sabotage, so he was subject to monitoring. He also was armed. In 2012, McNelis started exhibiting bizarre paranoid behavior (he thought his children’s toys were plotting against him) and was abusing alcohol and “bath salts” (a synthetic recreational drug). A coworker reported this behavior to a supervisor. McNelis was examined by a psychologist who performed fitness-for-duty examinations at nuclear facilities nationwide. The psychologist determined that McNelis was considered not fit for duty. Based on that report, PPL revoked McNelis’s access authorization and terminated his employment. McNelis filed an ADA claim alleging that the psychologist wrongfully diagnosed him and that he could have performed the essential functions of his job, with or without an accommodation. The lower court granted summary judgment in favor of the power company.

Safety First

On appeal, the Third Circuit stated that McNelis could not prove that he was fit for duty under the NRC’s regulations and therefore his claim failed. The court cited numerous opinions holding that nuclear power plant employees who lost security clearance or were deemed not fit for duty are not qualified employees under the ADA. By setting such a standard, the NRC made the legally defined qualification an essential function of certain jobs at nuclear power plants. The court went on to analogize the situation to federal DOT regulations for driving a commercial motor vehicle. If an employee could not pass the DOT medical certification, they were not considered qualified under the ADA. Employers covered by the DOT regulations, such as the power plant being covered by the NRC regs, were not insisting on a job qualification of their own devising, but instead were complying with a regulation that had the force of law.

McNelis attempted to argue that the lower court’s holding diminished ADA protections for workers in sensitive positions of the nuclear industry. The Third Circuit stated that due to the potential danger to the public, it was perfectly rational for the NRC to explicitly require nuclear power plants to screen for traits and behaviors that in other contexts might violate the ADA. The Third Circuit upheld the dismissal of McNelis’s claim.

What Did We Learn?

At first glance, this opinion may only seem to apply to high-public-risk employers such as nuclear plants. However, the Third Circuit pointed to a great deal of case law showing that many other occupations are affected by federal safety regulations—-most commonly, DOT regulations. Employers that are explicitly required to have their employees meet federal safety and medical standards should be aware that those can be considered essential functions of that job. This decision also illustrates that safety, and how an ADA accommodation may affect that safety, is always a consideration during the accommodation interactive process.

Don’t Report Yet! OSHA Holds Off on Electronic Posting RequirementsLast July, we wrote about the Occupational Safety and Health Administration’s new electronic reporting requirements, which will require certain employers (those with 250 or more employees, or those with 20-249 employees in specific industries) to electronically submit injury and illness data. When OSHA announced the new reporting requirements, it gave a deadline of July 1, 2017, for employers to electronically submit their information in a Form 300A. Last week, OSHA announced that it has indefinitely postponed that deadline and conveyed that it is not accepting electronic submissions at this time.

At this point, OSHA and the new presidential administration have not hinted that they plan to make any substantive changes to employer obligations to complete and retain injury and illness records. We have seen, however, a significant change in the course of employer regulations across the board since the Trump Administration took office, so the delay in the implementation of the electronic reporting requirements could suggest that substantive changes are in the works.

As we discussed in a March blog post, President Trump has already repealed the Fair Play and Safe Workplaces regulations finalized last August, which required reporting of a host of violations under labor laws including OSHA. Additionally, OSHA has not published any information about enforcement fines issued since Inauguration Day, whereas under the Obama administration, OSHA issued more than 400 news releases annually about fines and other enforcement actions. This change marks a dramatic shift from the prior administration’s attitude that employers should be admonished to clean up any issues lest they face a hefty fine or other penalty. The postponement of the electronic reporting requirement appears to be yet another development in that shift.

Stay tuned for further developments.

workplace hazardWhen does an incidence of workplace violence rise to the level of a federal case? The Occupational Safety and Health Administration (OSHA) has updated its guidance on just that issue. The OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm to employees. The succinctly titled Directive Number CPL 02-01-058, “Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence” —which became effective on January 10, 2017 — addresses when hazards created by people (i.e., violent coworker, customer, etc.) violate the General Duty Clause.

The Directive provides general enforcement guidance as to when OSHA officials should make a response to, and/or cite an employer for, a complaint or fatality arising out of an incident of workplace violence. It defines “workplace violence” broadly as “violent acts (including physical assaults and threats of assaults) directed towards persons at work or on duty.” The stated purpose of the new Directive is to (1) clarify the different healthcare settings in which workplace violence incidents are reasonably foreseeable; (2) recognize corrections and taxi driving as high-risk industries; (3) identify more resources for inspectors; (4) explain the review process for settlement agreements; and (5) update guidance on hazard alert letters.

Why the Update?

The updated Directive appears to be based, in part, on data from the Bureau of Labor Statistics (BLS) about the 15,000 to 25,000 incidents of workplace violence reported each year. First, BLS says that two- thirds of the reported incidents resulting in missed work occurred in healthcare settings.  Also, BLS reported that late-night retail workers, taxi drivers, and correctional officers have reported high numbers of incidents of workplace violence.

What Does the Directive Say?

The Directive generally sets forth the steps OSHA is to follow to determine whether to initiate an inspection of a complaint or incident related to workplace violence. It also provides the basis for a citation under the General Duty Clause, the resources available to OSHA in conducting inspections and developing citations, and how Area Offices may assist employers in addressing workplace violence.

In determining whether to initiate an inspection, the Directive sets forth a list of known risk factors, none of which would individually trigger an inspection. OSHA is to consider whether the employer’s work entails:

  • contact with the public;
  • the exchange of money;
  • the delivery of passengers, goods, or services;
  • a mobile workplace, such as a taxicab;
  • employment in healthcare, social service, or criminal justice;
  • working alone or in small numbers;
  • working late at night or during early morning hours;
  • working in high-crime areas;
  • guarding valuable property or possessions; or
  • working in community-based settings, such as drug rehabilitation centers and group homes.

Assuming your workplace involves some of those factors, when does a workplace violence incident constitute a violation of the General Duty Clause?  The Directive provides the following elements of a violation: (1) the employer’s failure to keep its workplace free of a foreseeable workplace violence hazard; (2) the hazard was recognized explicitly or because it occurred in a recognized high-risk industry; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) there was a feasible, useful means of correcting the hazard.

Guidance on Assessing Your Risk

The updated Directive advises employers to assess their worksites to identify methods for reducing incidences of workplace violence, and counsels employers to develop and implement a well-written workplace violence prevention program. It goes on to suggest that employers implement engineering and administrative controls, and train employees regarding reducing incidences of workplace violence.

Appendix A to the Directive provides a list of potential methods for reducing workplace violence that employers should consider. Among other methods, the appendix suggests provisions that a comprehensive workplace violence prevention program should include, like a policy statement, a hazard assessment and a security analysis. The appendix also provides examples of engineering controls, including assessing plans for new construction to eliminate or reduce security risks; installing and maintaining alarm systems and other security devices, including metal detectors and 24-hour close-circuit recording equipment; limiting access to the worksite; and installing bright, effective lighting. Examples of administrative controls include conducting a workplace hazard analysis; training employees as to workplace violence; establishing liaisons with local police and state prosecutors; and requiring employees to report all assaults or threats to a supervisor or manager.

You should consider OSHA’s guidance in developing and implementing a workplace violence prevention program. Make sure your employees know that they do not have to tolerate potentially violent behavior, and they need to report any such behavior. However, when you get to the suggested engineering and administrative controls, be sure to balance them against other laws governing your workplace, including state, local, and federal privacy laws and safety and building codes and standards.