President Biden stated last week that the Occupational Health and Safety Administration (OSHA) will implement a rule that employers with more than 100 employees will be subject to fines if they do not require COVID vaccinations or test employees for COVID on a weekly basis.
The new mandate raises many issues about workplace law that I touch on below:
Workers’ compensation: Employees who are injured through employer-required testing or vaccination would clearly be covered by workers’ compensation. In order for an injury to be covered by workers’ compensation, an employee needs to be doing something in the course of their employment duties for the benefit of their employer.
Before mandated vaccinations and testing, maybe employers could argue that COVID testing and vaccinations injuries weren’t covered by workers compensation. But mandates firmly shut the door on what I think is a semi-specious argument.
Whistleblower: OSHA will likely rely on whistleblowers to enforce the rule. While there is no general federal right for an employee to sue their employer for retaliating against them for not complying with the mandate, Nebraska has a general whistleblower law that gives employees that right. An employee in Nebraska who was retaliated against for reporting non-compliance with the vaccine mandate has 300 days to either file a charge with the Nebraska Equal Opportunity Commission or file directly in state court.
Workers in certain industries could also have a federal right to sue their employer for not enforcing vaccine and testing requirements.
Wage and hour law: The new mandate gives employees paid leave for vaccination side effects. The Fair Labor Standards Act (FLSA) also requires that employers pay employees for time spent on employer-ordered medical care. I anticipate some litigation arising out of this law – particularly if employers force employees to get vaccinated or tested outside of regular work hours.
Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm in North Carolina. He writes about updates that theUnited States Department of Labor’s Occupational Safety and Health Administration (OSHA)will require of businesses when it comes to reporting workplace incidents. I found the links at the end of the article both informative and eye-opening. In addition, I thought the article from the industry publication, Risk and Insurance, was especially telling as to how businesses should be prepared for the new reporting requirements. It will definitely be interesting to see how these new requirements affect the number of incidents and hopefully result in safer workplaces for all.
Starting January 1, 2015 the Occupational Safety and Health Administration (OSHA) will enact new changes in its workplace incident reporting rules. These rules will increase the amount of reporting when it comes to hospitalizations caused by workplace injuries, as well as increase accountability and transparency among employers. According to U.S. Secretary of Labor Thomas Perez, the new requirements will “help OSHA focus its resources and hold employers accountable for preventing [workplace injuries and deaths].”
Here are the changes that will soon be in place:
Employers must notify OSHA within 24 hours of a workplace injury that led to in-patient hospitalization, amputations or loss of an eye.
Employers must notify OSHA of workplace death within eight hours of the incident.
More industries will be required to keep OSHA 300 injury and illness records, which will be made available on OSHA’s website. Some of these industries include: specialty food stores, bakeries, automobile dealers, museums, activities related to real estate, and more.
All employers must follow these requirements, including those who have been exempt from keeping OSHA records.
If you’d like to learn more about OSHA’s new record keeping and reporting rules, visit the following websites for more details:
Today’s post comes from guest author Thomas Domer from The Domer Law Firm in Wisconsin. Below is an article discussing the fear of retaliation many injured workers around the country feel when they are faced with the decision of whether to report a work-related injury or not. The rules vary from state to state, and as the article discusses, the fear often depends on a number of different factors.
In Nebraska, if your employer terminates your employment because you reported a work-related injury, you may be entitled to additional compensation due to your employer’s retaliatory actions. This type of claim is referred to as a retaliatory discharge claim. Retaliatory discharge claims are considered an exception to Nebraska’s at-will employment doctrine. This is because the Nebraska Supreme Court determined that allowing the type of fear of retaliation for filing a claim discussed in the article below undermined the very important purpose of the Nebraska Workers’ Compensation Act, which is to relieve injured workers from the negative economic effects caused by a work-related injury. All that being said, though, a retaliatory discharge claim requires very specific facts and will not apply to every situation because it is an exception to the rule of at-will employment. In fact, a large amount of potential claims will not fit the criteria needed for a retaliatory discharge claim. That is why it is important to speak with an experienced attorney about your potential case.
Workers often fear retaliation if they report a safety violation or work injury related to a violation. Concerns about being fired or other forms of retaliation by employers permeate the process of worker’s comp claims filing. Studies have indicated that retaliatory fear prompts many workers not to file either OSHA or workers’ comp claims. Workers also don’t want to be perceived as careless or complaining. In a Government Accounting Office (GAO) study of OSHA reporting, occupational health providers often reported to workers’ fear of retaliation as a reason for underreporting. Fully 2/3 of health providers “reported observing worker fear of disciplinary action for reporting an injury or illness.”
Pressure from co-workers also prompts failure to report safety violations and comp claims. Safety incentive programs (sometimes called “safety bingo” ) create incentives not to report, since non-reporting leads to a reward for a work group. If one worker reports his injury, the entire crew may pay the price. The GAO survey found this peer pressure to be a troubling factor contributing to underreporting to OSHA. (Anecdotally, I remember a worker who cut off his finger on a Friday, wrapped it in a hankie and put it in his pocket , rather than report the injury and disappoint his fellow employees looking forward to a case of beer reward for “100 consecutive safe work days”).