Cross-conflicting regulations, employer confusion
by Tom aka Rusty Rustbelt
Health care thoughts: Cross-conflicting regulations, employer confusion
Most of you will be familiar with the medication drowsiness warnings to the effect of “don’t operate machinery or heavy equipment, etc. etc.” This is from FDA regs. (www.FDA.gov.)
OSHA has extensive guidance about employee safety with manufacturing machinery, heavy equipment and driving and the impact of drowsiness. (www.OSHA.gov)
So it seemed sensible for employers to ask for voluntary disclosure by employees taking pain medications in these work environments, because OSHA puts the safety burden on the employers.
Not so fast! The EEOC (www.EEOC.gov) is litigating cases claiming the request for medication information is a violation of the Americans with Disabilities Act. For a plain English summary of a recent case see The EEOC.
So pretend you are the employer. Which regulation do you see as primary? Anyone have a workable solution?
Rusty,
The OSHA rules should be primary. They are there to protect both the individual employee but also his co-workers. I think everyone can see people getting killed if a heavy equipment operator just dozes off while at the controls. OSHA empowers the employer (and holds them responsible) for safety violations.
The EEOC is over-reaching and trying to find something to justify its existance. Like the Education department having a SWAT team. Beuacracy growing into any place it can, long past its need.
Islam will change
Quote from the EEOC link: “The EEOC said that this policy is a violation of the ADA because it is not related to the ability of employees to do their jobs”
I would think that if taking a medication posed a danger to the employee or others if the employee operated machinery as part of the job, then it would be related to the ability of the employee to do the job. In theory, there should be no conflict between the regulations. In practice, there might be, but it should be something that will be resolved sooner or later.
As for a workable solution in the workplace? I would ask the workers to set the policy. After all, it is their lives, limbs, and livelihood that are at stake.
OSHA would not approve.
It matters to OSHA who sets policy?
It matters very much to OSHA or any other federal agency who sets the policy governing the workplace. But, this is complicated law. The ADA says more or less that the employee doesn’t have to provide the employer with any information potentially relating to his health history. So, if the employer inquires and then uses any information so received to discipline or terminate an employee, that’s an EEO violation. You have to accomodate an employee with a disabling condition.
But, unless we know the facts of specific EEO complaints, we can’t be sure what the dispute is. Could be that the EEO complaint is just a defense to an otherwise justified adverse action. I’ll take a look at the link for the case facts. It will be interesting to see what the real deal is. NancyO
Yes, it will be interesting to see if the regs are really in conflict. 🙂
Is the Lord of the Oxide right that OSHA disapproves of employees setting workplace policy?
“For at least 15 years, Product Fabricators’ “drug policy” required employees
to report to their supervisor when they took any medication causing dizziness or
drowsiness, or otherwise affecting their senses, motor ability, judgment, reflexes, or
ability to perform their jobs. Failure to comply could result in termination.
In September 2007, Anderson, a shear operator, did not work for several days
due to back pain. His doctor said he could return to work “with no restrictions” on
September 17. He returned to work in a position that was less physically strenuous.
On September 18, he left work early, due to a sore back. He did not work the next
two days. On September 20, he reported an injury from September 18, adding he was
medicated while working on the 17th and 18th. On September 21, Product
Fabricators terminated Anderson for violating the drug policy.”
– It appears to me that he was not fired for taking the drugs, but for failing to inform his
employer that he was taking these drugs. BTW my guess is that a shear opperator would have to be very alert at all times as not to shear off someones fingers or worse.
Yeah, “failure to comply with company safety rules” can be a valid cause for dismissal. The company would also say that he was unable to perform his former duties, another reason to fire him. Sounds like this guy works under a Union contract or similar company sick leave policy or there’d be no case for his defense at all. The company had to accomodate him, which is what the “failed to take into account his ability to do the job” means. If he could do it with medication or a change to lesser duties, they had to keep him. Nobody would, of course, because the ADA is impossible to enforce in reality. So, my advice to the lawyers is “Settle. Fast.” NancyO
Without giving it all that much thought, I’d think specifying the job protection available to those who take pain killers for a medical reason would go some way to fixing the problem. If workers had no reason to fear loss of employment or income as a result of telling an employer about drug use, then telling an employer about drug use wouldn’t be a big deal.
The burden is almost always on the employer for safety, including when the employee violates the rules. It is a very strict complinace system.
That’s what I figured. 🙂
tend to agree with kharris here.
the employer is of course going to enforce the “tell us” rule. the employee has good reason to want to protect his privacy. the “drug warnings” are often overkill. sure some drugs CAN make some people drowsy sometimes, but by no means all people all the time. it’s not like it suddenly drops you in your tracks.
what the employer should do, but won’t, is provide adequate supervision so an employee who is sick, or drowsy, or drunk, or drugged would be noticed and sent home.
but where I worked the employer would not even provide a “spotter” to make sure the trucks and heavy equipment did not back over the other workers, or even innocent civilians. they relied on the “backup alarms” which you have heard, but which no one on a job site can hear after fifteen minutes of listening to them constantly.
practice
yeah, that’s what you’d think. but a safety interlock can prevent most of that finger cutting, and was installed on such machines only after unions and the law required the employers to spend the money.
we note that the employee was not drowsy on the job. but was fired after reporting to the boss that he had taken pain medication.
the warning lable on the pain medication is a warning of “might cause” and that is a long way from “will cause sudden uncontrollable drowsiness”
you won’t find many employers taking seriously the drowsiness and inattention that can come from long shifts.
I’m not about to read everything on the OSHA site, but I looked at one page: http://www.osha.gov/Publications/3337-07-2007-English-07192007.html. The sole guidance on operating machinery while on medications is that the employer should provide appropriate training for vehicle operators, teaching them things such as, “Do not operate when impaired due to fatigue, medications (prescription or non-prescription), alcohol, or illegal drugs.”
Tom aka Rusty Rustbelt seems to be writing on the assumption that there is some conflict between the OSHA regulations and the Americans with Disabilities Act, but if there is, I don’t see it. So my advice to the employer would be to comply with both the OSHA regulations and with the Americans with Disabilities Act.
I’m not about to read everything on the OSHA site, but I looked at one page: http://www.osha.gov/Publications/3337-07-2007-English-07192007.html. The sole guidance on operating machinery while on medications is that the employer should provide appropriate training for vehicle operators, teaching them things such as, “Do not operate when impaired due to fatigue, medications (prescription or non-prescription), alcohol, or illegal drugs.”
Tom aka Rusty Rustbelt seems to be writing on the assumption that there is some conflict between the OSHA regulations and the Americans with Disabilities Act, but if there is, I don’t see it. So my advice to the employer would be to comply with both the OSHA regulations and with the Americans with Disabilities Act.
Having taught OSHA rules to employers and employees, and having done some very dangerous work, and having supervised employees, I know an employer can teach constantly, supervise constantly, and employees will still violate safety rules (and I will confess to my own sins, including operating heavy equipment with a killer hangover).
Employees will fail to disclose health issues and medications, which makes complying with ADA difficult, and which can also cause safety problems.
The real world is really messy.
Most employers of any size have ADA policies very similar to that, as the feds recognize it is impossible to accomodate a disability if the employer has no knowledge of the disability.
Many employees do not want to be “disabled,” and might consider not consider taking medication as a disability.
Hmmm. Having workers set workplace safety policy sounds better and better. 🙂
Organizational psychology is a little far afield for me, but my impression is that adherence to decisions is enhanced when everyone involved (the stakeholders) takes part in making those decisions. 🙂
Yes, the probem with construction is that every project is different and every crew is different (we call the union halls, they send the number of each skill we need). Management by concensus is tough.
And OSHA puts 99% of the responsibility on mangement.
the employer is of course going to enforce the “tell us” rule. the employee has good reason to want to protect his privacy. the “drug warnings” are often overkill. charter croatia