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Tuesday, November 18, 2014

Black Friday OSHA Safe Shopping Guidelines

By Tommy Eden

The Occupational Safety and Health Administration (OSHA) on November 12, 2014, sent a letter to Big Box retailers to implement crowd control plans and other safety measures in preparation for Black Friday shoppers.

In November 2008, Jdimytai Damour, a temporary employee at a Wal-Mart in Valley Stream, N.Y. Damour was knocked to the ground and crushed by a crowd of 2,000 shoppers rushing into the store for its "Blitz Friday" sales on the day after Thanksgiving.

OSHA found that the store had failed to implement reasonable and effective crowd management practices fining the store $7,000 which is the maximum penalty for a serious violation under the law.

To prevent a reoccurrence of this tragedy, OSHA sent the November 12th letter to major retailers, industry trade associations and local fire marshals advising them to adopt a crowd control plan to protect employees during the holiday sales season.

Under OSHA guidelines, employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death. OSHA also published a Fact Sheet entitled, "Crowd Management Safety Guidelines for Retailers," which contains safety guidelines retail stores may adopt in addition to its own safety procedures. The guidelines are also excellent guidance on crowd control for any large event.

Common Sense Counsel: OSHA recommends that employers planning a large shopping event adopt a plan that includes the following 4 elements (Full Checklist Fact Sheet):

·  Where large crowds are expected, hire additional staff as needed and have trained security or crowd management personnel or police officers on site.
·  Create a detailed staffing plan that designates a location for each worker. Based on the size of the crowd expected, determine the number of workers that are needed in various locations to ensure the safety of the event (e.g., near the door entrances and throughout the store).
·  Ensure that workers are properly trained to manage the event.

Pre-Event Setup:
· Set up barricades or rope lines for crowd management well in advance of customers arriving at the store.
· Make sure that barricades are set up so that the customers' line does not start right at the entrance to the store. This will allow for orderly crowd management entry and make it possible to divide crowds into small groups for the purpose of controlling entrance.
· Ensure that barricade lines have an adequate number of breaks and turns at regular intervals to reduce the risk of customers pushing from the rear and possibly crushing others, including workers.

During the Sales Event:
·  Provide a separate store entrance for staff. Provide door monitors there to prevent crowd entry.
·   Make sure that all employees and crowd control personnel are aware that the doors are about to open.
· Staff entrances with uniformed guards, police or other authorized personnel.

Emergency Situations:
·   Do not restrict egress, and do not block or lock exit doors.
·  Know in advance who to call for emergency medical response.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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 and follow on twitter tommyeden3

Wednesday, November 12, 2014

ACA Compliance Countdown

By Tommy Eden 

For employers with 100 or more employees, Affordable Health Care Act (ACA) compliance should be in your high beams. There is a great deal of recent guidance and activity, including a notice that 5 Justices of the United States Supreme Court accepted two ACA cases to review, King v. Sebelius (DC Circuit) and Halbig v. Sebelius (4th Circuit), which were in conflict on the issue of availability of a government subsidy to those persons not residing in one of the 34 states that did not establish a state health care exchange. As the drama unfolds, many employers still have much ACA compliance work to do and this checklist may be helpful:

ACACompliance Countdown Checklist

1. Are you an Employer covered by the “Pay or Play” Mandate?
□ Are you subject to the 2015 pay or play rules based on your 2014 workforce (100 or more Full Time Equivalents [FTEs])?
□ Have you included all controlled group and affiliated service group members in your coverage determination?
□ If using a staffing company, are their workers also your common law employees (i.e. do you direct the means and manner of work performed is the 1st test)?
□ Do any special transition rules delay your compliance deadline for 6 months?
□ Have you properly classified each 2014 employee’s status with written documentation in his or her personnel file (i.e. full time, part-time, variable hour, seasonal or temporary)?
□ Have you studied the NFIB Healthcare Playbook to see how your small business is scoring on ACA compliance?

2. If you are covered?
If you must “play” and provide affordable, minimum value coverage:
□ What measurement period will you use to identify those employees who have obtained full-time status (130 hours a month average) who should be offered coverage? (6, 9 or 12 months)
□ What standard waiting period, or minimum hours of service before coverage begins will you follow? (generally must offer coverage within 90 days of full time status)
□ Do you have a form for those eligible employee who decline coverage to sign?
□ If you use a staffing company, decide who will provide health coverage, or pay the premiums, and consider including that agreement in a staffing contract addendum (Client Employer must “participate” in the offer of coverage or risk ACA penalty).

3. Is your Plan compliant?
If you must “play”:
□ Review plan(s) to confirm they satisfy minimum essential coverage rules (i.e. a “skinny plan” without hospitalization coverage will get you a fat penalty).
□ How will you calculate whether plan coverage is “affordable” (a generally if the employee only premium is less than 9.5% of the employee’s W-2 wages then the plan is affordable)
□ Have you considered adding to your Alabama BCBS coverage a wraparound secondary policy of insurance for your employees to cover all deductibles and co-pays recently offered by BCBS of South Carolina? 

4. Are you prepared for new 2014 W-2 Reporting?
□ Who in your organization will be trained to file all required reports and required information on employee 2014 Forms W-2?

5. Are your employees prepared to pay the approximate $325 tax per family member for being uninsured in 2015? 
□ On Nov. 15, 2014 open enrollment for 2015 begins at

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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 and contacted at or 334-246-2901. Blog at with live links and downloadable checklist. IRS Circular 230 Disclosure: this column is for educational purposes only and does not constitute tax or legal advice and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Wednesday, November 5, 2014

Some Workplaces Going to Pot

By Tommy Eden

In Rhode Island on November 12, 2014, the ACLU filed a state court Disability Discrimination and violation of the Hawkins and Slater Medical Marijuana Act lawsuit on behalf of Christine Callaghan, a University of Rhode Island graduate student intern applying to work for pay and class credit at Darlington Fabrics Corporation. Christine was also was a lawful cardholder in the Rhode Island medical marijuana program since 2013.

The lawsuit alleges that Christine used marijuana to treat her migraine headaches and disclosed to a member of Darlington’s human resources department that she was a medical marijuana cardholder during her final interview. She was later called on a company speakerphone and told she would not be employed because she was a medical marijuana patient, according to the lawsuit. The Rhode Island Act grants employee discrimination protection to qualified card holders. The Act is found at G.L. 1956 Section 21-28-28.6-1. The Complaint completely ignores the issue that marijuana is illegal under federal law. The Case is Callaghan v. Darlington Fabrics Corp. in the Providence Superior Court.

As a side note, the New York Times ran a story on November 6, 2014, that George Soros’ Open Society Foundation gave a 50 million dollar gift to the ACLU to mount an eight-year political campaign across the country to make a change in criminal justice policies, a key issue in local, state and national elections.  Darlington is the first case in the country that the ACLU has filed such a claim to take up the cause of a medical marijuana cardholder. There are at least seven other states with exploit “status protection” to cardholders such as: Arizona, Connecticut, Maine, Nevada, Rhode Island, Delaware, Illinois, Minnesota, New York.

In the State of Michigan on October 23, the Michigan Court of Appeals issued a ground breaking consolidated decision in three unemployment compensation appeals that all concerned medical marijuana cardholders.

Jenine Kemp was employed by Hayes Green Memorial Hospital in Charlotte, MI, as a CT technician. The Hospital maintained a zero-tolerance drug policy and employees were pre-employment and reasonable suspicion drug tested. In May 2011, a patient complained that Kemp had inserted an IV line in the patient without using gloves, discussed the patient’s insurance coverage in a crowded area, and told the patient about her family’s drug use, including that she ate “special brownies,” according to court documents.
An investigation followed and Kemp was directed to take a drug test. Kemp wrote on the consent form that she used medical marijuana. During the investigative meeting Kemp showed no objective signs of intoxication but tested positive for marijuana in a confirmed test. Kemp was terminated by the hospital for failing the drug test.

Kemp later testified that she suffered from lupus, neuropathy, and chronic pain in her hand and she has first obtained a medical marijuana card in December 2010, which was valid at the time of her termination in May 2011. According to Kemp’s testimony, she was never under the influence of marijuana at work but used it between 6:00 p.m. and 7:00 p.m., and to her the effects were usually gone within two hours. She worked the Hospital’s 6:30 a.m. to 3:00 p.m. shift.

Kemp applied for unemployment benefits but was initially disqualified for testing positive for an illegal substance. However, the decision was overturned by a Michigan Administrative Law Judge (ALJ) when she produced her medical marijuana card. The ALJ explained that because marijuana was legally available to use for medical purposes, the issue was whether Kemp’s use of marijuana constituted misconduct or was illegal, and must include consideration of the Michigan Medical Marijuana Act (MMMA). Because Kemp used marijuana for medical purposes, the ALJ found that her use was lawful and did not bar her receipt of benefits.

The MMMA provides that qualifying patients “shall not” (1) be subject to arrest, prosecution, or “penalty in any manner” or (2) be denied any “right” or “privilege,” “including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau. . . .” On October 23, 2014, in a ground breaking decision, the Michigan Court of Appeals zeroed in on that language to find that the denial of the unemployment compensation benefits to Kemp, and two similarity situated Michigan employees, constituted an improper penalty for the medical use of marijuana under the MMMA. Most significant is the Appeals Courts acknowledgment that marijuana is an illegal drug under federal law but held that this was purely a state law issue. These combined appeal decision by the Michigan Court of Appeals is  Braska etal v. Department of Licensing & Regulatory, Unemployment Insurance Agency decided October 23, 2014.

Common Sense Counsel: so what is your employer survival plan as more states go to Pot? Try these 7 practical steps:
 1. Understand the laws on Medical Marijuana that are specific to states where employees report for duty;
2. Adopt a legally vetted pre-duty prescription medication and impairing effects substances safety policy that makes it all about safety;
3. Update employee job descriptions to cover critical safety sensitive issues;
4. Adopt an ADA complaint handbook policy on reasonable accommodations in those more difficult states that grant some level of employee status protections;
5. Let employees know your stance on Medical and Recreational Marijuana use;
6. Update your drug-free workplace policy and forms to stay in compliance and reduce the risk of claims and lawsuits; and
7. Stay tuned as this issue continues to create new employer challenges almost monthly.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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 and follow on twitter tommyeden3