Plaintiffs Attorneys on What Employers Should Know Today
October 20, 2023
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During Ward and Smith’s annual Employment Law Symposium, three attorneys provided insights on a fictional construction company's reaction to a serious job site accident.
In the session, the attorneys shed light on key issues relevant to modern workplaces, including an employee under the influence of prescription medication on the job, marijuana use across state lines, sexual relationships between employees, and harassment of a transgender employee via incorrect pronoun use.
A unique educational strategy developed by Ward and Smith’s Labor and Employment Practice, the discussion involved a Live Action Role Play ("LARP") with audience members, who shared ideas about the situation through a text-based polling system. The session was led by Ken Gray, leader of the Labor and Employment Law Group.
The LARP offered valuable guidance from Amy Fitzhugh, a professional licensing attorney, and Avery Locklear, a labor and employment attorney, on an incident at Cruising Construction Company ("CCC"), a growing commercial construction company with 150 employees across seven departments. The attorneys discussed how CCC should deal with a fatal accident involving one of its employees.
Although the company was hypothetical, some of the examples were drawn directly from real life, with the names changed to protect the innocent. Before diving into the issues, the attorneys provided key points about the background of the company and the accident:
- CCC typically has around 500 independent contractors in addition to 150 employees
- CCC has an employee handbook, last updated in 2015
The Accident
On the day of the incident, CCC was completing renovations for Diceman, Incorporated. Sadly, a CCC employee ruptured a gas line, causing an explosion that killed him instantly. Another employee, Tom, suffered a broken arm as a result of the accident, and three Diceman employees went to the emergency room but were not seriously injured.
Key Issue: Reporting A Workplace Death
The audience saw worker’s compensation, OSHA regulations, and the outdated employee handbook as important issues. Timing requirements for reporting injuries and fatalities were also noted as important to the conversation; Gray asked Ward and Smith attorney Justin Hill for clarification:
“You have to report a fatality within eight hours. And within 24 hours, you need to report an inpatient hospitalization, an amputation, or the loss of an eye.”
Gray: “What happens if you don’t report it and OSHA finds out?”
“They don’t take very kindly to it, I’ll tell you that much,” advised Hill, who is legal counsel for the Safety and Health Council Board of Directors in North Carolina. “OSHA will cite you for a failure to report, and that is a very severe violation.”
Key Issue: Employee vs Independent Contractor
Employers should update employee handbooks on an annual basis, noted Gray. “It’s also vital to ensure you’re classifying employees and independent contractors correctly,” added Locklear. “If you’ve misclassified a worker as an independent contractor, you could be liable for worker’s comp if there was an injury involved.”
Tom's Story: A Broken Arm, Pot, and OxyContin
A broken arm was only the beginning for Tom, who had been taking OxyContin for six months before the accident. Tom, who is also a general contractor, had injured his back in a car wreck and his wife, Kelly, a nurse practitioner, had been writing him prescriptions for the drug.
Compounding the situation, Kelly is also employed with CCC as the company’s Industrial Hygienist/Plant Nurse. Other items relevant to Tom and this workplace scenario included:
- His attendance at a bachelor party in Virginia, where he smoked marijuana, which is legal there
- CCC’s mandatory drug testing policy for employees injured on the job
- Tom’s concern about failing the drug test and willingness to take a lie detector test proving he only used marijuana where it was legal
- Tom’s knowledge of the CCC employee who perished; the individual had also smoked marijuana at the bachelor party
- Information Tom received from Rooster, a co-worker who noted the employee who died had been known to partake of a little marijuana in the morning to prepare for work
Key Issue: Employee Substance Use
Substance abuse, conflict of interest, and prescription drug misuse were just a few of the issues
identified by the audience. Fitzhugh noted that “CCC or OSHA could have reported an incidence of fraud
or negligence to the general contractor’s board in this case.”
Tom is going to be drug tested because of the accident, and it’s highly likely he is going to test positive for THC, commented Gray: “Tom said he only smoked in Virginia, so do we have a problem?”
There is a statute in North Carolina dealing with the lawful use of lawful products. “This just refers to doing something you’re allowed to do,” advised Gray. “And Tom was allowed to do it, so it’s really a grey area at this point.”
An argument currently circulating that substantial use of CBD can accumulate in the system and result in a drug test showing the presence of THC only confuses the issue. This is important because, Gray pointed out, an individual who had been advised by medical professionals to take CBD oil recently had his CDL license revoked when a test showed the presence of THC.
Current testing methodologies are simply inadequate. Similarly, lie detectors are of little use. “The DOL will pretty much go after any company taking action over a lie detector test,” said Gray.
Kelly's Story: Prescribing to her Spouse and a Workplace Relationship
In an interview with HR, Kelly was informed that Tom was in an accident involving narcotics and illegal substances. She rationalized prescribing OxyContin for Tom by stating he was too busy for a doctor's visit and had been experiencing depression.
Kelly is expecting Tom’s stress level to increase because she is pregnant with twins. She has yet to apprise him of the situation but is planning on doing so that evening because her morning sickness is severe. She also informed HR she isn’t sure if Tom is the father due to an affair she recently had with Bob, the CFO.
Though she broke it off, Kelly told HR Bob has continued pursuing her, ‘but not in a creepy way.’ Kelly is hoping the interview will be in confidence; she concluded by saying she and Bob have stayed friendly.
Key Issue: Illegal Prescribing
It is mandatory for the company to report Tom's wife, Kelly, the nurse practitioner, to the Board of Nursing for prescribing to her spouse. “The prescription for Tom may be valid,” added Fitzhugh, “but it’s illegal for Kelly to write the prescription.”
Many audience members felt Kelly was trying to use her pregnancy as a means of protecting herself from termination. Most agreed Tom’s struggles with depression should have been reported, and Kelly should be terminated despite the potential for a sexual harassment issue with the CFO, depending on the chain of command.
Key Issue: Reasonable Accommodations
Kelly does not need to use "magic" words to request an accommodation. Instead, a pregnant employee can trigger an employer's legal obligation through a communication that demonstrates the need for an accommodation due to their pregnancy-related limitation. The employer may need to "provide Kelly with a reasonable accommodation such as a later arrival time for work," stated Locklear.
Key Issue: Compliance Reporting
“Legally, there’s no such thing as keeping something in confidence,” explained Gray. “Something we always tell people is that if you hear something about religion, medical issues, or sexual harassment, run it up the chain.”
Other potential issues include workplace violence from Tom when he hears the news and a possible claim from Kelly if she was terminated and Bob was able to keep his job.
Rooster's Story: Marijuana and Transphobic Harassment
Should Rooster have gotten up at dawn to let the company know the employee who died often smoked weed before work? Rooster had noticed the individual smelled like marijuana and told him he could get fired if the company drug tested him. The employee threatened Rooster that bad things would happen if the company learned about the situation.
Rooster was classified as a female at birth. Having identified as male for the last ten years, he asked his co-workers to use ‘he/him’ pronouns, but many refused, opting for ‘she/her’ pronouns instead.
Rooster just wants to be left alone; however, lately, he has received transphobic comments from his co-workers.
Key Issue: Creation of a Hostile Work Environment
Foreseeable issues from audience members included workplace bullying, systemic discrimination, harassment, and the creation of a hostile work environment.
It is essential to update the employee handbook and provide training. “In the LGBTQ arena, we find a lot of problems start with frontline employees because they have not received sufficient training to know you cannot pick on somebody in that community,” noted Gray.
People need to focus on using the correct pronouns but also be aware mistakes will happen. The issue is whether the mistake was intentional since incorrect pronoun use can represent a slur. A good rule of thumb is to simply use the person’s name.
Conclusion
Real life is complicated. Employers work within their workplace cultures to maintain compliant and respectful environments. Proactive HR leaders can update their handbooks, offer training, encourage communication, and provide reasonable accommodations.
Employees are sometimes reluctant to speak up for themselves, engage in the interactive process, or disclose key information to help keep the job site safe. These are challenges employers will continue to wrestle with as they confront issues related to the lawful use of lawful substances, use of prescribed medications, workplace relationships, and the interactive process.
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