Recommendations to Make the Corporate Holiday Party Fun, Festive, and Harassment-Free

By | HR, Insurance, OSHA, Safety, Training | No Comments

Around the holiday season,  a lot of employers want to celebrate in some form and fashion with their employees. Most employers don’t realize their potential liability. Potential liability is almost always there, but some simple recommendations can go along with in limiting their liability including:

  • Employers should consider hosting a holiday event outside of the traditional holiday party. A growing trend among many companies is to host corporate luncheons or volunteer events that benefit non-profit organizations. These alternatives can reduce the employer’s potential liability with regard to alcohol-related incidents and harassment complaints.
  • Likewise, instead of an employee holiday gift exchange, employers can sponsor a fundraising event for a local charity. Doing so decreases the potential for sexual harassment complaints associated with office gift exchanges. In addition, employers should avoid games, decorations, or other sexually charged traditions that could expose the company to liability.
  • As another option to help avoid incidents of sexual harassment, employers may want to consider hosting a holiday party that allows employees to invite their significant other, a plus one, or even children.
  • When planning holiday gatherings, employers should select a name for the event that is non-religious to avoid complaints of religious discrimination. Employers should also inform employees that participation in holiday gatherings, be it a corporate party or volunteer event, is voluntary.
  • When planning holiday soirees, employers should ensure that employees and guests do not consume excessive amounts of alcohol. Thus, it is strongly recommended that employers supply guests with drink tickets (generally two tickets are standard) or have a cash bar. Likewise, employers are strongly recommended to do the following: (1) close the bar one hour prior to the end of the event, (2) designate supervisors who will not drink at the event to monitor alcohol consumption of employees and guests, (3) and have a system in place to get intoxicated employees and guest(s) home safely, i.e., Uber, Lyft, or other local transportation options.
  • Prior to the corporate holiday event, employers should review their policies and procedures regarding discrimination and harassment and remind employees, through a memorandum, that all company policies will be in effect during the holiday party.

    If you need any assistance or have any questions, please contact you HR Ideas Representative.

ATF: Marijuana and Firearms Don’t Mix

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Much has been written in the comment section of The Shooter’s Log regarding state versus federal laws. So, this article should provide for lively debate. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has issued a clarification to language on ATF Form 4473. The clarification covers the use of marijuana in states that have legalized it for recreational or medicinal use versus federal law. In other words, it may be legal in some states, but it is still unlawful federally.

On the revised ATF Form 4473, Question 11e reads, “Are you an unlawful user of, or addicted to, marijuana or any other depressant, stimulant, narcotic drug or any other controlled substance?” This caused confusion for some in that marijuana has been “legalized” in some states.

However, the ATF is focused on federal, not state, law. To avoid further confusion, the ATF has added the following clarification to question 11e, “The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

The revised ATF Form 4473 will be mandatory for use starting January 16, 2017.

The ATF’s clarification follows a ruling issued by the U.S. Court of Appeals for the Ninth Circuit last August. In that decision, the court ruled marijuana card holders at the state (Nevada) level are barred from gun purchases .

OSHA Issues Walking-Working Surfaces Rule

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On November 17, 2016, OSHA issued a f inal rule revising and updating its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The final rule includes revised and new provisions addressing fixed ladders, rope descent systems, and fall protection systems. The rule also establishes requirements on the design, performance and use of personal fall protection systems in general industry. In addition, employers must now train employees on identifying and minimizing fall hazards, using fall protection systems and maintaining, inspecting and storing fall protection equipment.

The final rule allows employers to select the fall protection system that works best for their environment, instead of requiring the use of guardrail systems, which the current rule mandates. Employers now can choose from a range of accepted options, including personal fall arrest, safety new system, ladder safety systems, travel restraint and work position systems. OSHA has permitted the use of personal fall protection systems in construction since 1994 and the final rule adopts similar requirements for general industry.

The final rule codifies a 1991 OSHA memorandum that permits employers to use Rope Descent Systems (RDS) and adds a 300-foot height limit for their use. It also requires building owners to affirm in writing that permanent building anchorages used for RDS have been tested, certified, and maintained as capable of supporting 5,000 pounds for each worker attached.

The final rule also requires that ladders be capable of supporting their maximum intended load and that mobile ladder stands and platforms be capable of supporting four times their maximum intended load. Moreover, each ladder must be inspected before initial use in a work shift to identify defects that could cause injury.

For fixed ladders that extend more than 24 feet, the rule phases in ladder safety or personal fall arrest systems and phases out the use of cages or wells. For portal ladders, employers must ensure that rungs and steps are slip resistant; portable ladders used on slippery surfaces are secured and stabilized; portable ladders are not moved, shifted, or extended while a worker is on them; top steps and caps of stepladders are not used as steps; ladders are not fastened together to provide added length unless designed for such use; and ladders are not placed on boxes, barrels, or other unstable bases to obtain added height.

OSHA drew from requirements in the national consensus standards in crafting the new rule, including ANSI/ASSE A1264.1–2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Roof Openings; Stairs and Guardrail Systems; ANSI/ASSE Z359.1–2007, Safety Requirements for Personal Fall Arrest Systems, Subsystems and Components; and ANSI/IWCA I–14.1–2001, Window Cleaning Safety Standard.

OSHA anticipates that the changes provided in the final rule will prevent 29 fatalities and 5,842 lost-workday injuries annually.

The final rule becomes effective on January 17, 2017. Some requirements in the new rule have compliance dates after the effective date including:

  • Ensuring exposed workers are trained on fall hazards and the use of fall protection equipment (6 months),
  • Inspecting and certifying permanent anchorages for rope descent systems (1 year),
  • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (2 years),
  • Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (2 years), and
  • Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (20 years).

If you should have any questions, please contact your HR Ideas Safety Representative.

OSHA Anti-Retaliation Rule Will Take Effect December 1

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This rule goes into effect December 1. During the period between December 1 and a court ruling on the merits of the case, employers that have  post-accident drug testing and incident-based safety incentive programs potentially are subject to citations by OSHA.

Employers will have to choose whether to modify their existing programs or wait until the court decides on the legality of the OSHA rule before making any changes.

If you have any questions regarding the rule or other workplace safety issues, please feel free to contact your HRI Representative.

What Employers Should Know About OSHA’s Enforcement of the Food Safety Modernization Act

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Lost in all the landscape-altering changes made by OSHA during the last 18 months was its adoption of enforcement procedures for handling retaliation claims under the FDA’s Food Safety Modernization Act (“FSMA”). Employers across many industries should take notice of the far-reaching provisions of the FSMA. It not only applies to food processing employers, but any entity that is involved with the transportation or handling of food products, including trucking companies, distribution centers, warehouses, and cold storage.

Enacted in 2011, the FSMA prohibits an employer from terminating or discriminating against an employee for, among other things, raising a concern about food safety or refusing to comply with an employer’s order to violate a law or ordinance regarding food preservation. The FSMA is one of twenty-two (22) whistleblower statutes enforced by OSHA, and the most recent law for which whistleblower procedures were implemented. OSHA adopted the final rule setting forth its enforcement procedures under the FSMA on April 18, 2016.

Here’s what employers should know about the FSMA:

1. Which Employers are Subject to the FSMA? The FSMA applies to any entity “engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.”

2. What Employer Actions are Prohibited? The FSMA prohibits employers from discharging or otherwise discriminating against an employee because the employee, “whether at the employee’s initiative or in the ordinary course of the employee’s duties (or any other person acting pursuant to a request of the employee)” does any of the following:

a. Reports, or is about to report, any violation of a food safety rule, regulation, standard, or order;
b. Testified or is about testify in a proceeding regarding such a violation;
c. Assisted or participated or is about to assist or participate in such a proceeding; or
d. Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of the FSMA, or any order, rule, regulation, standard, or ban.

3. When and How Claims Must be Filed. Claims under the FSMA must be filed within 180 days of the alleged retaliation. A claim may be submitted either orally or in writing. With the consent of the employee, complaints may be filed by any person on the employee’s behalf.

4. OSHA’s Enforcement Procedure. Upon receipt of the complaint, the Secretary of Labor must provide written notice to the employer alleged to have violated the FSMA of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, afford the complainant and respondent an opportunity to respond.

5. Standard for Enforcement. The Secretary should continue the investigation only if the complainant has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent, in its response, has not demonstrated, through clear and convincing evidence, that it would have taken the same adverse action in the absence of that activity.

6. What Can OSHA do if Liability is Found? If, as a result of the investigation, the Secretary finds there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the respondent of those findings, along with a preliminary order that requires the respondent to, where appropriate: take affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation of that position (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory damages to the complainant, as well as all costs and expenses (including attorney fees and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued.

7. Objections to OSHA’s Findings. The complainant and the respondent then have 30 days after the date of the Secretary’s notification in which to file objections to the findings and/or preliminary order and request a hearing before an administrative law judge (ALJ) at the Department of Labor. The filing of objections under FSMA will stay any remedy in the preliminary order except for preliminary reinstatement. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

8. Hearings under the FSMA. If a hearing is held, the statute requires that it be conducted “expeditiously.” An order must be entered by the Secretary within 120 days after the conclusion of any hearing, which may provide appropriate relief or deny the complaint. Until the final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary, where appropriate, will assess against the respondent a sum equal to the total amount of all costs and expenses, including attorney and expert witness fees, reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the Secretary issued the order. The Secretary also may award a prevailing employer reasonable attorney fees, not exceeding $1,000, if the Secretary finds that the complaint is frivolous or has been brought in bad faith. Additional appeal rights to the United States Courts of Appeals are available following the issuance of a final order.

OSHA enforcement is much broader than its fundamental mission of keeping workers safe. Employers should recognize that they cannot retaliate against employees who either raise concerns relating to the food products the employer processes, distributes, or handles, or identify issues about workplace safety hazards.

Now is the time to implement procedures for handling complaints made by employees relating to food safety. Make sure any such complaints are taken seriously and fully investigated, with the results documented in writing. Do not terminate or discriminate against any employee who raises such an issue. Taking these steps will help avoid a retaliation claim under the FSMA.

Doctor Recommendations Are Medical Treatment According to OSHA

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In an April 2016 Interpretation Letter, which was recently made publically available, OSHA responded to a question about medical treatment beyond first aid for recordkeeping purposes. The incident in question involved an employee who experienced wrist pain after working at a computer. Before being seen at the occupational health clinic, the employee bought and used a rigid wrist brace. The doctor said that the brace was not necessary but recommended that the employee continue to wear it if it was relieving the pain. The requester wanted to know whether this constituted medical treatment.

In responding, OSHA stated that the recordkeeping criteria is met if the treatment is “directed or recommended by the employer or a health care professional.” In this particular situation, because the doctor recommended the employee continue wearing the brace if it relieved pain, OSHA determined that this constituted medical treatment beyond first aid. Since OSHA does not generally consider self-treatment or self-medication to amount to medical treatment beyond first aid, had the doctor provided no opinion on the use of the wrist brace the work-related injury would not have been recordable.

Should you have any questions or need any safety assistance and/or training, please contact your HR Ideas Safety Professional at 925-556-4404.

Pressure Cooker Safety

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1. Always follow the manufacturer’s written recommendations including how to properly use the pressure cooker and cleaning methods.
2. Before cooking, check your equipment. Always check the rubber gasket (the ring of rubber that lines the lid of the cooker) to make sure it isn’t dried out or cracked.
3. It is recommended replacing the gasket annually, depending on how often the cooker is used.
4. Check to make sure that there is no dried food on the rim of the pot, which could break the seal.
5. Don’t overfill the cooker. For most foods, don’t fill the pressure cooker more than two-thirds full, to avoid the possibility of food blocking the vents. Foods like beans and grains, which tend to swell as they cook, should only fill about half of the cooker.
6. Use enough liquid. A pressure cooker needs liquid to create the steam that cooks the food. A good recipe will take this into account, but if you’re creating your own, you’ll need at least 1/2 cup of water or other liquid. If the steam doesn’t seem to be building with this amount, open the cooker (releasing any steam first) and add a little more until you reach pressure.
7. Take care when cooking foods that froth. The frothing can block the steam valves and the pressure release vents. Foods that froth include pasta, rhubarb, split peas, oatmeal, applesauce and cranberries. If you do want to cook these foods, follow a trusted recipe and make sure that the quantity in the pot is well below the recommended maximum fill line.
8. Don’t pressure fry. Using more than a tiny amount of oil in your pressure cooker can be very dangerous and could melt the gasket and other parts.
9. Release pressure in a safe way. You can release pressure in three ways:
• By just removing the cooker from the heat and letting it sit until the pressure goes down (natural release),
• Running cold water over the lid of the closed pan (cold water release), or
• Using the pot’s steam release valve to expel the steam (quick release).
10. Make sure to protect your hands with pot holders as you’re handing the cooker, and if you’re using the quick release method, be sure that your face, hands and body are away from the steam vent. When you open the cooker after the steam has been released, hot steam will still escape from the pan, so as you open the pan, tip the lid away from you and hold it over the pan so that the hot condensation doesn’t drip onto you.
11. Clean the cooker properly. Remove the gasket and wash it separately, along with the lid and the pot. Clean the valve with a wooden toothpick, making sure it moves freely and isn’t stuck. Store the cooker with the lid upside down on the pot, rather than locked in place.

If you should have any questions of need any safety training, please contact your HR Ideas Safety Professional.

Recreational Marijuana Placed on California November Ballot – Workplace Rights

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On June 28, 2016, California Secretary of State Alex Padilla confirmed that the measure titled “Control, Regulate and Tax Adult Use of Marijuana Act” is eligible for the November 8, 2016 general election ballot. The Secretary of State subsequently designated the measure as Proposition 64.

Proposition 64 purports to leave employers’ workplace rights undisturbed. The proposed act states that its purpose and intent, among other objectives, is to “[a]llow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The proposed act also states that nothing in it shall be construed or interpreted to amend, repeal, affect, restrict or preempt the rights and obligations of public and private employers to maintain a drug and alcohol free workplace.

Further, the act would not require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace. The proposed act also states that it would not affect an employers’ ability to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.

The act also makes reference to workplace safety, without providing any solutions. Instead, the act’s authors created a placeholder for future regulation: the new section 147.6 of the labor code would provide for an advisory committee to evaluate the need for industry-specific regulations.

AS new developments come forward, we will keep you informed. If you should have any questions, please contact your HR Ideas representative at 925-556-4404.

Cal OSHA Vigorously Enforcing OSHA Heat Stress Standards

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Cal OSHA continues to investigate the tragic death of a farm worker recently reported in the Bakersfield area. The tentative cause of death is related to Heat Stress.

In light of recent high temperatures, Cal OSHA’s maximum enforcement of its Heat Illness Prevention Standard included 597 inspections of agriculture, construction, landscaping and other outdoor worksites this June and July.

So far this year, Cal OSHA have issued 994 citations to 742 employers for heat-related violations which require corrective action to protect workers from heat illness. In fact, Cal OSHA has the authority to close a job site down if they feel that the employer is not in compliance with the Heat Stress standards which not only include providing water and shade, but also providing employees with the required training.

Unfortunately, these statistics represent that there are still a lot of employers out there not doing enough to protect their employees.

Should you need any assistance or have any questions, please contact your HR Ideas representative at 925-556-4404.