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Wednesday, October 19, 2016

Texas Judge in OSHA Litigation Delays Enforcement of Post-accident Drug Testing Final Rule to December 1, 2016

 By Thomas Eden

In high stakes litigation playing out before United States District Judge Sam Lindsey in Dallas, Texas, the government attorneys and those employer groups seeking to enjoin OSHA’s record keeping rule-anti-retaliation provision under 29 CFR 1904.35, have jointly agreed to extend the delay of enforcement until December 1, 2016. This is to give the parties further time to brief the issues focusing on the nationwide injunction requested, and the court’s authority to issue such an order.

Below is the delay of enforcement memorandum sent on October 18, 2016, to all OSHA Regional Administrators from Deputy Assistant Secretary Dorothy Dougherty:

The final rule to Improve Tracking of Workplace Injuries and Illnesses contains three new employee involvement provisions that address employer conduct that could discourage employees from reporting work-related injuries or illnesses. The final rule clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and therefore must not deter or discourage reasonable employees from reporting work-related injuries or illnesses (1904.35(b)(l)(i)); requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation ((b)(l)(ii)-(iii)); and incorporates into Part 1904 the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses ((b)(l)(iv)). These provisions became effective on August 10, 2016.
OSHA initially delayed enforcement of these provisions until November 1, 2016, to allow time for additional outreach to the regulated community. On October 14, 2016, the United States District Court, Northern District of Texas, asked OSHA to further delay enforcement through December 1, 2016 to allow additional time to consider a motion pending before the court in a case challenging the new provisions, TEXO ABC/AGC Inc. v. Perez, No. 3:16-cv-01998-D (N.D. Tex.). OSHA has agreed and will delay enforcement of the employee involvement provisions of the final rule until December 1, 2016.
This final regulation, if not enjoined, will on December 1, 2016, impact employer post-accident drug testing nationwide. For guidance, see Constangy’s Don’t Panic! Employers Should be Able to Continue Most Post-accident Drug Tests under OSHA’s New “Reasonable Reporting Procedure” Rule.

 On October 19 OSHA Released Updated Guidance:

Improve Tracking of Workplace Injuries and Illnesses – Employee's right to report injuries and illnesses free from retaliation

One of the goals of this recordkeeping rule is to improve the completeness and accuracy of injury and illness data collected by employers and reported to OSHA. When workers are discouraged from reporting occupational injuries and illnesses, the information gathered and reported is incomplete and inaccurate.

The rule includes three provisions that are intended to address this issue:

(1) An employer's procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting

(2) Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation

(3) An employer may not retaliate against employees for reporting work-related injuries or illnesses

Injury Tracking and Use of Disciplinary, Incentive or Drug Testing Programs

The rule does not ban appropriate disciplinary, incentive, or drug-testing programs as described below.

However, it allows OSHA to issue citations for retaliatory actions against workers when these programs are used to discourage workers from exercising their right to report workplace injuries and illnesses. Employers should review their reporting procedures, programs, and policies for elements that may result in retaliatory actions against an employee for reporting an injury or illness.

Disciplinary Programs

Incentive Programs

Drug Testing Programs

A 10/19/2016 memorandum provides further guidance on the basic principles of these requirements.

Common Sense Counsel: Eliminating Employer Confusion over Post-Accident Drug Testing Decisions

OSHA’s interpretation of its new reporting regulation is generating confusion among employers and supervisors who are concerned that they will be prohibited from conducting any post-accident drug tests.

5  Common Sense Steps to Eliminate Employer Confusion in light of latest OSHA Post-Accident Drug Testing Guidance:

1. Adopt a DFWP policy, in accordance with the State Laws, in order to reduce insurance premiums is not retaliatory and therefore seems permissible under §1904.35(b)(1)(iv), even though employers are not literally required by state or federal law or regulation to implement drug-free workplaces Because the motivation to take advantage of state DFWP statutes is to reduce insurance premiums or disqualification of workers’ compensation claims for statutory violations, such policies are likely to be viewed by OSHA as compliant. Having the State Agency, or attorney, written certification is highly recommended. Well Drafted BEST Practices DFWP Guidance:
  • Should meet State DFWP Laws and be customized for your business
  • Should cover WC and UC Disqualifications 
  • Should deal with Medical and Recreational Marijuana Issues
  • Should handle pre-duty prescription medication disclosure under the ADA
  • Should cover this new OSHA guidance
  • Should be easy to read and understand by employees and supervisors
  • Should include all required pre-employment and active employee sign-off forms, checklists, notices and specimen documents (last chance agreement)

2. Including Disqualification for a Post-Accident Positive or Refusal language under the States’ Workers Compensation in your DFWP is a wise step to be able to show testing for a lawful and permissible purpose – reduction of workers’ compensation cost and encourage an unimpaired drug free workforce. Under Section 4 of the OSH Act employer rights concerning Workers Compensation are outside of OSHA’s jurisdiction

3. For those employers who are simply accepting an insurance carrier’s premium discount offer that includes mandated post-accident drug testing for reportable injuries, or required to be part of a self-insured workers’ compensation fund, in the absence of a State certified DFWP statute, the arrangement requiring post-accident testing should be captured in writing.

4. Adopt a customized confidential post incident/accident report form that captures:
  • The how, when, who and why of the incident/accident
  • Did the employee’s action, or in-action, contribute to the incident/accident, or cannot be completely discounted as a contributing factor?
  • Include in checklist “triggers” matching your new post incident/accident testing circumstances or events
  • Include in your checklist dual supervisor sign-offs
  • Completed form is evidence of legitimate, non-discriminatory reason for the adverse action; i.e. post-accident drug test

5. Train supervisors, safety, HR and line managers on:
  • Your new Post incident/accident drug testing criteria
  • How to utilize your new Post incident/accident drug testing report
  • Train your Drug Testing TPA, Occupational Physicians’ offices, post-accident clinics to ask if the Report has been completed as part of their authorization to conduct post-accident testing
  • Train supervisors on reasonable suspicion testing & reasonable possibility testing and provide them checklist for both
  • Train HR and supervisors on the use of last chance agreements as a risk reduction strategy

Constangy is here to Help Employers - Don’t Panic!
  • Employers Should Be Able to Continue Most Post-Accident Drug Tests Under OSHA’s New “Reasonable Reporting Procedure” Rule
  • Constangy Workplace Drug & Alcohol Testing Group can help you with DFWP Compliant Policies in all 50 states
  • Can help update your current post incident/accident testing language to include the “triggers” to reduce the risk of OSHA citations
  • Can prepare a customized confidential post incident/accident report form
  • Can train your supervisors on reasonable possibility with customized checklist
  • Constangy can advise you on OSHA inspections, risk reduction steps to avoid OSHA retaliation claims, OSHA citation responses, etc.
 For a free recorded EBI webinar on this topic, click here.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at or 334-246-2901. Constangy, Brooks, Smith & Prophete, LLP has been representing the interests of employers for 70 years.  If you have questions about how your relationships are implicated in the employment law arena, please contact me or any of our attorneys.

Friday, October 14, 2016

Judge In OSHA Drug Testing Case May Grant Breather to 12.1.16

Trucking Company Wins Sleep Apnea Challenge

By Thomas Eden
In 2010, Crete Carriers began a sleep apnea program based primarily on two Federal Motor Carrier Safety Administration (FMCSA) advisory committees—the Medical Review Board (MRB) and Motor Carrier Safety Advisory Committee (MCSAC) recommendations. Under the regulations, drivers must get medical examinations from FMCSA-certified examiners every two years. Drivers cannot operate commercial motor vehicles unless an examiner certifies them as physically qualified to do so. 

During this examination—a “DOT physical”—the examiner measures height and weight; takes a health history; tests vision, hearing, blood pressure, and urine; and physically examines numerous body systems. To receive certification, a driver must not have impairments that interfere with driving.

The Crete Carriers’ program required drivers at risk for obstructive sleep apnea to undergo in-lab sleep studies. Drivers found to have obstructive sleep apnea were placed on a treatment regimen. Crete implemented the program in stages, first at larger terminals and then at smaller facilities.

Crete added Robert Parker’s facility in Nebraska in July 2013. Crete hired Parker as an over-the-road truck driver in 2006. Crete told Parker that, due to his size, it was scheduling him for an in-lab sleep study. Crete required an in-lab sleep study if either (1) the driver’s BMI was 35 or above, or (2) the driver’s physician recommended a sleep study. At Parker’s most recent DOT physical, his BMI was over 35.

On July 11, 2013, Parker visited a certified physician assistant not affiliated with Crete, who wrote a statement, “I do not feel it is medically necessary for Robert to have a sleep study.” The next week, Parker refused Crete’s required sleep study. Crete took Parker out of service. The next day, Parker gave the physician assistant prescription statement to Crete. Crete did not reinstate Parker.

Parker then sued Crete in Federal Court in Nebraska, alleging it required a medical examination violating the Americans with Disabilities Act, and discriminated against him because it regarded him as having a disability. Crete moved for summary judgment based on a sleep apnea medical expert affidavit. In granting the motion, the district court relied on the expert’s discussion of the danger posed by drivers with obstructive sleep apnea.

Common Sense Counsel: This week the 8th Circuit Court of Appeals found in favor of Crete holding that “when an employer requires a class of employees to submit to a medical exam, it also “must show that it has reasons consistent with business necessity for defining the class in the way that it has.” An employer satisfies this burden by showing a “reasonable basis for concluding” that the class poses a genuine safety risk and the exam requirement allows the employer to decrease that risk effectively. All that is required is that “the employer has defined the class of employees reasonably.” As the saying goes, having a qualified medical professional render a correctly worded expert medical opinion, under the ADA, before you take adverse employment action - “Priceless!”

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at with link to full case.

Friday, October 7, 2016

Transgender Confusion Brings Litigation

By Thomas Eden

The Clark County, AZ School District hired Bradley Roberts as a campus monitor in 1992. At that time, he was known as Brandilyn Netz and wanted to be a police officer.  In 1994, Roberts graduated from the Police Academy and was hired by the District as a police officer.  Roberts held that position without incident for seventeen years.

In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man.  And he started using the men’s bathroom at work.   When others complained that a woman was using the men’s bathroom, Roberts’s commanding officers scheduled a meeting with him.   Roberts confirmed that it was him and explained that he was transgender and in the process of transitioning into a man.  He also told them that he wants to be known as Bradley Roberts and use the men’s bathroom. But Roberts’s commanding officers told him that he could not use the men’s rooms and that he should confine himself to the gender-neutral restrooms “to avoid any future complaints.” 
In response, Roberts sent a letter to his superiors again explaining that he was changing his name to Bradley J. Roberts, wanted his coworkers to use male pronouns to reference him, and that he would comply with the men’s grooming code.

The District responded to Roberts’s letter by holding a second meeting in November 2011, with which included Roberts’ his union representative.  Roberts repeated his requests: he wanted his coworkers to refer to him as a man, and he wanted to use the men’s restrooms.   His Captain said no, as far as the District was concerned, Roberts would not be referred to as a man or allowed to use the men’s restroom until he could provide official documentation of a name and sex change.
Later they decided that Roberts could informally use a man’s name for the time being, but that “all official and formal documents” would contain his female name until he obtained a court order and a name-change packet from human resources. Roberts was banned from the men’s restrooms until he had documented his sex change. Until then he was directed “to use a gender-neutral or single occupancy restroom,” not the female restrooms.

This week a Nevada Federal District Judge ruled that the District discriminated against Roberts under Title VII of the Civil Rights Act and state law when it barred him from using the men’s and women’s restrooms, but rather requiring that he use gender-neutral or single-person bathrooms. The decision appears to be the first time that a court has interpreted those protections to mean that transgender employees have a right to use bathroom facilities that match their gender identity.

Common Sense Counsel: Updating your handbook language to cover gender identification and sexual orientation language should be one of your first priorities, with updated training, deciding now on restroom solutions and finding a source for guidance when confusion reigns in your workplace. Transgender Discrimination is an EEOC litigation hot button issue for 2016-2017.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Thursday, September 29, 2016

DOL Releases Final Rule on Paid Sick Leave for Employees of Federal Contractors

By Thomas Eden

The U.S. Department of Labor announced Thursday its Final Rule implementing Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors. Here are the highlights from the DOL’s Fact Sheet:

*Covered contractors are “nearly identical” to those contractors covered by the minimum wage requirements for federal contractors, but this Rule also covers employees who are exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act. The Sick Leave rule also applies to “certain contracts with the U.S. Postal Service.”

*The paid sick leave requirements will become effective in new solicitations or contracts awarded after January 1, 2017.

*Employees who work on or in connection with a covered contract must accrue 1 hour of paid sick leave for every 30 hours worked.

*“If a [collective bargaining agreement] ratified before September 30, 2016 applies to an employee’s work performed on or in connection with a covered contract, and the CBA provides the employee with at least 56 hours (or 7 days) of paid sick time (or paid time off that may be used for reasons related to sickness or healthcare) each year, the . . . Rule will not apply to the employee until the date the agreement terminates or January 1, 2020, whichever is first.”

*Paid sick leave may be substituted for or run concurrently with unpaid leave under the Family and Medical Leave Act.

*A contractor’s existing paid time off policy can fulfill the paid sick leave requirements as long as employees have the same rights and benefits required by the Final Rule.

Common Sense Counsel: The cost of doing business with the Federal Government just went up! Stay tuned for more information and a Constangy webinar date! My Partner Cara Crotty is reviewing the Final Rule and will publish a Constangy Affirmative Action Alert with more details shortly.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. Some quotes contained in the column were taken from a Constangy Blog Post by his law Partner Cara Crotty. Tommy can be contacted at or 334-246-2901. Blog at Contact his legal assistant Christina Johnson if you wish to be placed on the free Constangy update list.

Friday, September 23, 2016

How to Make the EEOC Love You

By Thomas Eden

Employers, imagine that a retaliation charge has been filed against your company. What can you do to make the Equal Employment Opportunity Commission (EEOC) investigator love you (and go away)? In early September, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues, accompanied by a Q&A, and a Small Business Fact Sheet.


Have a written no-retaliation policy, in plain language that your least-educated employee can understand. Provide realistic examples. Tell employees where and how to report alleged retaliation. In the management version, provide a hotline and other help for managers and supervisors who have to supervise an employee who has engaged in protected activity.

Go through your other employment policies, and revise or scrap any that seem to threaten employees who engage in certain types of protected activity. For instance, if you have a policy that prohibits employees from talking about their pay, ditch it. The EEOC says a policy like that is retaliatory, and if you’re a federal contractor such a policy will also get you in trouble with the Office of Federal Contract Compliance Programs. Other federal agencies hate those policies, too, including the National Labor Relations Board.

Include retaliation in your regular EEO training for employees and supervisors. Again, employees need to understand that retaliation is against the law, and they need to know where and how to report it. You can always video record the training for employees in remote locations. Supervisors and managers accused in a charge need to take to hear the EEOC advice: “Emphasize that those accused of EEO violations . . . should not act on feelings of revenge or retribution, although also acknowledge that those emotions may occur.”  You have to love the way that the EEOC separates actions from emotions.

If a current employee files a charge (or engages in other protected activity), talk with the employee’s supervisors and managers as soon as possible, and remind them of the laws and company policy against retaliation. If they directly supervise the employee who filed the charge, come up with a plan that will allow them to keep their personal feelings under control and continue constructively managing that employee. 

Follow up periodically with everyone involved in a charge (or other protected activity) to ensure that no retaliation is occurring. “Everyone” would include the individual who filed the charge, as well as his direct supervisor and the people in his chain of command. If you have employees who are witnesses in connection with the charge, check in with them, too. If you find out that there is actual or perceived retaliation, you need to address it immediately. 

If action has to be taken against an employee who has filed a charge or engaged in other protected activity (“sacred cow” employee), review it carefully in advance, in consultation with your employment attorney. Even a seemingly slight downgrade in a performance rating could be considered retaliatory if it results in a smaller pay increase or makes the employee ineligible for promotion.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. This column is taken from a Constangy Blog Post by his law Partner Robin Shea. Tommy can be contacted at or 334-246-2901. Blog at with link to full case. 

Thursday, September 15, 2016

Final FMCSA Clearinghouse Regulation Release Imminent

By Thomas Eden

On May 20, the Federal Motor Carrier Safety Administration (FMCSA) sent to the White House Office of Management and Budget (OMB) its final rule that would establish a national database of truck drivers who have failed or refused to take drug and alcohol tests. Submission to the OMB if the final step in the approval process. The proposed drug and alcohol clearinghouse rule, originally published as a proposed rule February 12, 2014 would require motor carriers and other medical personnel to “report verified positive, adulterated and substituted drug test results, positive alcohol test results, test refusals, negative return-to-duty test results and information on follow-up testing.” The DOT recently updated to the definition of “Service Agent” under 49 CFR Part 40.3 in preparation for the final release.

FMCSA Employers will be mandate to search the clearinghouse for positive drug and alcohol test results, and refusals to test, on an annual basis for current employees and as part of the pre-employment process for prospective employees. Those same employers will also be mandated to upload positive result and refusals into the clearinghouse. Currently, employers must rely on information provided by the driver, and mandated contact the prior DOT employers, who might not disclose prior positive drug or alcohol test results, or refusals to test. That system is hit or miss at the best.

On September 14, 2016, at a conference of the Substance Abuse Program Administrators (SAPAA), the largest association representing in house drug and alcohol program administers, the Program Director for the Federal Motor Carrier Safety Administration (FMCSA), Juan Moya, announced that the final FMCSA Clearing House Regulation would be released shorty, but before the end of October 2016.

Common Sense Counsel: After the final clearinghouse regulations are issued employers will need to update their FMCSA policy, Forms toolkits, adopt various internal reporting and confidentiality protocols, conduct training and modify their Service Agent contracts.  This Proposed Regulation will touch every CDL holder and their employers and is the most significant regulatory change since 2001 when 49 CFR Part40 Regulations were adopted.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith and Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors, and as Legal Counsel, to the Substance Abuse Program Administrators Association. Tommy can be contacted at or 334-246-2901. Tommy drafts DOT and State Specific Drug Free Workplace Polices for Constangy clients nationwide and will be presenting a Constangy webinar on this topic after the final regulation release.