Workplace safety issues often develop when employers are faced with external challenges. From last year’s Ebola scare to this year’s measles outbreak to extreme weather events, including snow storms and torrential rains, there are many situations employers need to be prepared to handle to ensure the safety of their employees. Workplace violence is also an increasing reality, and it is imperative that employers have safeguards and plans in place to respond to and prevent such situations. This panel, comprising of members of Littler’s Workplace Safety Practice Group, will discuss what has been learned from such recent events. Our panel will look to the future and discuss how disruptive forces such as introducing robots into the workplace will present new workplace safety challenges for employers in the workplaces of the near future.

2. Preparing for Emergencies
in an Age of Epidemics,
Storms & Workplace Violence

3. Terri Solomon
Shareholder
Littler, New York
Ben Huggett
Shareholder
Littler, Philadelphia
Celeste Yeager
Shareholder
Littler, Dallas
Steve Biddle
Shareholder
Littler, Phoenix

4. Mental Illness:
How to Identify Risk
Within Confines of the Law

5. • Is Mental Health
Screening Currently
Required for Pilots and
Others in Safety-Sensitive
Positions?
Mental Illness

6. Mental Illness
• Should Mental Health
Screening Be Required
for Pilots and Others in
Safety-Sensitive
Positions?

7. • Society often confronts mental health in unpleasant
circumstances
– Mass shootings (Aurora, Colorado; Sandy Hook, Connecticut)
– Would-be assassins (John Hinckley)
– Serial killers (Ed Gein, Jeffery Dahmer, Sam Berkowitz)
– Many homeless persons
• The most recent of these
was the intentional crash
of Germanwings 9525
Mental Illness

8. Public Violence or
Workplace Violence?
• Aurora – Movie Theater
• Sandy Hook – School
• Germanwings – Plane
All public places but also workplaces

9. • Caught the attention of the public – Why?
• Pilot suicide is rare, but not new
• Suicides/violence from pilots/airline
employees:
– Egypt Air Flight 990
– Japan Airlines Flight 350
– Pacific Air Lines Flight 773
– Pacific Southwest Airlines Flight 1771
– SilkAir Flight 185
– Royal Air Maroc Flight 630
– Malaysia Airlines Flight 370
Germanwings 9525

10. • FAA statistics —
24 American pilots have
killed themselves while
flying their planes in last
20 years
• All male
• All middle-aged
• None in commercial
aircraft
Not Only Other Countries' Problem

11. • Post-September 11 security
systems designed to enhance
safety provided the mechanism
that allowed co-pilot to seal cockpit
• In hindsight seems especially
preventable – pilot experienced
severe depression before
• Employer knew of illness and its
seriousness
• Employer reinstated him after
treatment
Germanwings 9525

12. • Public Reaction:
– Public safety should trump individual privacy
– Mandatory mental health exams
• All pilots
• Others in sensitive positions
– Several news outlets incorrectly reported that U.S. pilots
are already subject to mental exams
• Should airlines/employers require mental health
examinations to protect workers and prevent violence in the
workplace?
Solution – Mandatory
Mental Health Screening?

13. • Mental health exams might have identified some who have
carried out some horrible acts
• Reassures employees that their colleagues are less likely to
harm them
• Protects customers and members of the public, even outside
transportation industry
• May help diagnose mental illness and instigate
appropriate/necessary treatment
Potential Benefits of Mandatory
Mental Health Screening

14. • Not a solution for airlines or other employers
– Not required by current law
– Could violate ADA
• Exams are expensive
• Often ineffective
– Pilots and professionals are sophisticated and
accomplished at hiding their conditions
– E.g., Germanwings 9525 first officer
• Even if 100% effective, exams are infrequent
– Where used, often only once or twice per year
– Triggers can arise at any moment and are not
predictable
Outweighed By Limitations of
Mandatory Mental Health Screening

15. • System currently in place has generally worked well
– Some questions regarding mental health issues during
annual exams by Aero Medical Examiner
– Self-reporting by pilots required
• Medications
• Mental health issues
– Federal crime to fail to self-report
Outweighed By Limitations of
Mandatory Mental Health Screening

16. • Americans with Disabilities Act protects qualified individuals
with physical or mental disability who can perform essential
functions of position with or without reasonable
accommodations
Legal Framework

17. • Americans with Disabilities Act
– Employer cannot require medical
examination unless
• Job-related or consistent with
business necessity, or
• Necessary to determine if
employee poses direct threat to
safety of himself or others
42 U.S.C. §§ 12112(b), 12113(a)-(b)
Legal Framework

18. • FAA has not determined it is job
related to ask pilots regarding
mental illness or conduct
psychological examinations to
screen for mental illness
– Regulations may change …
but any change may be
challenged in courts
• State Privacy Laws limit private
employers
Legal Framework

19. Direct Threat Assessment
• Employer may conduct direct threat evaluation if:
– (1) Employee threatens harm to himself or others, or
– (2) Employee engages in behavior that causes employer to believe
he or she may be a direct threat to safety of self or others
• Employer may condition employment on an evaluation to determine if
employee poses threat
• Consistent with ADA requirements and other laws
– 29 C.F.R. § 1630.2(r)
– EEOC Enforcement Guidance: Disability-Related Inquiries and
Medical Examinations of Employees Under the Americans With
Disabilities Act (ADA), Guidance Number 915.002, Question 12,
July 27, 2000

20. • Employee may be placed on administrative leave—with or
without pay and benefits
• Evaluation conducted by mental health professional chosen
by employer or by employee’s own mental health provider
• Employer pays for the evaluation, employee’s travel and
other expenses
• Employee must waive certain rights to confidentiality
(HIPAA authorization), but employer maintains
confidentiality to greatest extent possible
• Evaluation conducted and report prepared
• Employer makes employment decision based on
assessment
Direct Threat Assessment

21. • Response to a specific risk
• Minimizes likelihood of incident by proactive response
• Is cost-effective
• Reduces the risks of employer liability
– ADA
– Invasion of privacy
– Negligent hiring
– Negligent retention
– OSHA General Duty liability
Direct Threat Assessment

22. • 2003 Avian/Bird Flu – H7N2
• 2004 SARS – Severe Acute Respiratory Syndrome
• 2009 Swine Flu – H1N1
• 2014 Ebola
• 2015 Measles
What have we learned
from these outbreaks?
Outbreaks & Epidemics
22

23. OSHA
• General Duty Clause: Employers
must provide a safe workplace
– Protect employees from
“recognized hazards” that may
cause serious injury or death
• Workers who reasonably expect to
come into contact with a virus have
the right to know the hazards
associated with the potential exposure
and how to protect themselves
– Good faith belief that there is
imminent danger
23

24. OSHA
• Employers cannot:
– Discipline
– Discharge
– Discriminate
Against workers who
exercise their OSHA
rights, including voicing
concerns about a
potential virus exposure
24

25. Ebola-Specific OSHA Guidance
General Employer
• Bloodborne Pathogens
• Personal Protective
Equipment
– PPE Selection Matrix
for Occupational
Exposure to Ebola Virus
• Face/Eye Protection
• Fluid-resistant
clothing
• Respiratory Protections
• Good Hygiene
Healthcare Industry
Employer
• Enhanced PPE
• Prevent worker fatigue
• Training
• Waste disposal
25

26. Handling Workplace
Fear of Exposure
• Fear in the workplace
– Seven degrees of exposure
• Educate, Educate, Educate
– CDC Website materials about the virus
– How it is transmitted
– Train how to respond
– Be compassionate … lots of
conspiracy theorists!
• Leaves of Absence
• Working remotely
26

27. Hypothetical Scenario
• Employee returns from missionary
trip to West Africa and co-workers
fear exposure to Ebola upon
employee’s return to work at a
microchip distribution warehouse
– Can ER ask employee where
they have been? And about any
exposure to Ebola?
– Can ER send employee home?
– Can co-workers work remotely
for 21 days?
27

28. Other Scenarios
• Employee went to church with the mother of a man who
rode on the plane, six rows back, with one of the nurses
who contracted Ebola
– Do we need to shut down the workplace and do a deep
cleaning?
• Employee in a call center is married to the ambulance
driver who transported a symptomatic patient to the
hospital, later diagnosed with Ebola
– Do we send her home?
28

29. Leaves of Absence
For employees with a virus:
• FMLA apply?
– Employers have the right to send sick employees home
if believe there is a direct threat to the health or safety of
himself or others
• Other paid leave (PTO)
• Unpaid medical leave
• STD
29

30. Leaves of Absence
For employees afraid of contracting the virus:
• Reasonable fear?
• Business needs
– PTO available
– Vacation time
– Alternative work schedule
– Work remotely for a period of time
• Discipline if fail to report to work?
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31. Other Considerations
• HIPAA – info on a need to know basis
• ADA Discrimination
– Accommodation of virus?
• Work remotely
– Perceived disability from exposure?
• Doctor’s note to return to work
31

32. Natural Disasters
• Hurricane Katrina
• Tornados in the Midwest
• Ice Storms in the South
• Flooding
OSHA requires employers to
have a plan to keep employees
safe.
32

33. Plan Ahead
• Comprehensive Plan for the dealing with natural disasters
– Chain of command
– Emergency functions and who will perform them
– Specific evacuation/shelter procedures, including
locations, routes and exits
– Procedures for accounting for
personnel, customers and visitors
– Equipment for personnel
33

34. Who is Responsible?
• Identify which personnel are required to be on-site in the
days surrounding a natural disaster, as well as which
personnel are essential to business function, whether
required on-site or not
• Communicate areas of responsibility for key personnel and
train how to perform their emergency-response duties
effectively
34

35. Coordinate Disaster Response
• Police
• Fire department
• Hospitals
• Utility companies
Know what other businesses in
your area plan to do. Have
emergency numbers readily
available.
35

36. Train & Review
• Communicate your emergency response plan with your
workforce to ensure understanding of roles, responsibilities
and expectations for every employee
– Fire drills: Volunteer fire marshals on every floor
– Affixing storm doors and shutters
– Back-up generators
• Review emergency response
plan annually
36

37. The Future of
Workplace Safety

38. • Robots are really just machines
that can do helpful things:
– load and unload stock
– assemble parts
– transfer objects
– material handling
– arc and resistance welding
– painting/spraying
– bomb disposal
ROBOTS!!
38

39. • Robot-Related Safety Issues
– Robots can be used for replacing humans who were
performing unsafe, hazardous, highly repetitive, and
unpleasant tasks
– But what are the potential hazards?
(And, most importantly, will robots take
over the world??)
ROBOTS!!
39

40. • A welding robot went functionally awry and its arm flung a worker against another
machine
• A worker removed the cover of an operating assembly robot to retrieve a fallen part and
caught his hand in the robot's drive train
• A worker attempted to retrieve a part needed without shutting off the assembly robot's
power supply, and his hand was caught between the robot's arm and the unit being
assembled
• A robot's arm functioned erratically during a programming sequence and struck the
operator
• A fellow employee accidentally tripped the power switch while a maintenance worker was
servicing an assembly robot, and the robot's arm struck the maintenance worker's hand
• An operator performing troubleshooting maneuvered the robot's arm into a stopped
position triggering the robot's emergency stop, but when it was reactivated, the robot's
arm moved suddenly and jammed the operator's thumb against a beam
• An automatic welder robot operator made a manual adjustment without stopping the robot
and was hit in the head by one of the robot's moving parts
• A material handling robot operator entered a robot's work envelope during operations and
was pinned between the back end of the robot and a safety pole
ROBOTS!!
40

41. The use of robotics in the workplace also can pose potential
mechanical and human hazards:
Mechanical Hazards:
– workers colliding with equipment, being crushed, or trapped by equipment
– being injured by falling equipment components (e.g., a worker could collide with
the robot's arm or peripheral equipment from unpredicted movements,
component malfunctions, or unpredicted program changes)
– mechanical failure of components associated with the robot or its power source,
drive components, tooling or end-effector, or peripheral equipment
– failure of gripper mechanisms with resultant release of parts
– failure of end-effector power tools such as grinding
wheels, buffing wheels, power screwdrivers, etc.
Potential Safety Hazards
41

42. Potential Safety Hazards
Human Hazards:
• errors in programming, interfacing peripheral equipment,
connecting input/output sensors can cause unpredicted
movements or actions resulting in personnel injury
• errors in judgment often resulting from
becoming so familiar with the robot's
redundant motions that employees
are too trusting and place themselves
in hazardous positions while
programming or performing
maintenance within the robot's
work area
42

43. Potential Safety Hazards
• Currently, there are no specific standards for the robotics
industry
• But, of course, robots are machines, so they must be
safeguarded similar to other hazardous machines,
including:
– Machine Guarding
– Lockout/Tagout
– Power Equipment
43

44. • Install perimeter guarding with interlocking shutoffs
• The computer program, control circuit, or the primary power
circuit should be capable of being interrupted when an
interlock is activated
• ANSI safety standard for industrial robots (ANSI/RIA
R15.06-1986) - very informative and presents certain basic
requirements for protecting workers
Preventing Employee Exposure
to Robot Hazards
44

45. A typical, modern workplace safety program generally
consists of four key elements:
• Environment: Physical and social factors that contribute to
a safe workplace
• Policy: Procedures that ensure practices are aligned with
safety objectives
• Training: The delivery of consistent safety information to all
employees
• Awareness: Employees who proactively promote and live
by all of the above
The Future of Safety Training
45

46. Of all safety measures, training and continued awareness are
the most difficult to make stick
• they primarily rely on employees' ability to learn,
understand, and comprehend critical safety practices
• they also require employees to buy into the organization’s
safety culture
• the majority of workplace injuries today are rooted in
employees' attitudes, behaviors, and culture, rather than
dangerous and hazardous workplace conditions
The Future of Safety Training
46

47. • How information is delivered can have a big impact on
effectiveness and translation into behavior change on the
job
• We know that employees tend to retain only a small
percentage of what they learn in a single training session
• Only 15% percent of employees were able to achieve
sustained new behaviors following safety training
• Hurdles include cost, time, learning styles, cultural
differences, multiple languages, shorter attention spans of
especially younger workers
Delivering Effective Training
in the Modern Era
47

48. Delivering Effective Training
in the Modern Era
• New techniques are emerging that are significantly helping
employees retain more information and apply it effectively
to their jobs
• Combining the latest in brain science and technology
advances has led to:
– “Chunking” - developing information on
a single topic and delivering it in a
short, simple, and memorable way,
even 30-second to five-minute bursts
– This avoids information overload
and helps an employee remember
more
48

49. Other new techniques:
• “Active recall” – process of retrieving information from memory
by asking and answering, thereby imprinting more firmly in long-
term memory
• “Interval reinforcement” – providing information repeatedly over a
period of 30-60 days to reinforce prior learning; repetition with
the right spacing in between has been proven to drive retention
of knowledge
• “Gamification” – using video games, games of chance, or team
challenges to enhance and maintain employee interest and
motivation
• Mobile Technology – ability to deliver training materials via
smartphones or tablets
Delivering Effective Training
in the Modern Era
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51. © 2015 Littler Mendelson, P.C.