OSHA Changes Reporting/Recordkeeping Requirements
On Sept. 11, 2014, the U.S. Occupational Safety and Health Administration (OSHA) announced new requirements for reporting severe injuries. Currently, employers are only required to report within eight hours if a worker has been killed or three or more workers are hospitalized. Under the revised standard, an employer must report all fatalities within eight hours. An employer must report hospitalizations of one or more workers, amputations or loss of an eye within 24 hours. In addition, the revised standard also expands the number of industries required to keep illness and injury records. A list of the 25 new industries covered by the revised standard can be found at http://1.usa.gov/1yymiZj
. These new requirements are effective in federal OSHA states on Jan. 1, 2015. The Michigan Occupational Safety and Health Administration (MiOSHA) has six months from the date the rules were published to promulgate standards that are at least as effective as the federal standard. MiOSHA has indicated that it intends to adopt the new federal rules by reference.
By Karen VanderWerff
State Will Debut Scheduling Order for Workers' Comp Litigation
Michigan continues to see changes in the workers’ compensation litigation process. The latest change, with implementation likely in February 2015, introduces a formal scheduling order. The form must be completed by the parties and presiding magistrate and will list deadlines for activities, such as independent medical examinations, medical depositions and case facilitation.
By Geri Drozdowski
Case Highlights the Importance of Documenting Employee Performance
Employers can at times find themselves between the proverbial rock and a hard place when an employee’s poor performance warrants discharge, but the employee then engages in legally protected activity that raises the specter of a retaliation claim if they are fired. A recent decision from the Michigan Court of Appeals highlights the importance of documenting performance issues so that the employer can discharge a poor performer when necessary and successfully defend any lawsuit that follows. In Larue v. Gary P. Mullnix, DDS, PLLC
, the plaintiff was injured at work and filed a worker’s compensation claim. Within a month her employment was terminated, and she then sued claiming she was wrongfully terminated in retaliation for seeking worker’s compensation benefits. But the trial court dismissed her claim, and the Court of Appeals affirmed that dismissal. The courts held that the mere fact that she was terminated shortly after seeking benefits did not prove that exercising this right was the reason she was terminated. Instead, the courts found that the employer, a dental practice, properly documented performance deficiencies that justified her discharge – primarily poor teeth cleaning results documented in patient records and reviewed by the dentist prior to the decision to fire the plaintiff. The case serves as a reminder of the risks involved in terminating an employee who has engaged in protected activity, but also of the employer’s ability to take appropriate disciplinary action when performance or behavior issues warrant it so long as they are careful to properly document those issues.
By Dean Pacific
Partisan Gridlock Could Affect Upcoming NLRB Rulings
We presently have a fully-constituted National Labor Relations Board, consisting of five members (three Democrats and two Republicans). The term of one of the Democratic members, Nancy Schiffer, expired in mid-December. Although President Obama has nominated a replacement for Schiffer, it is far from clear whether that nominee will be confirmed. If he/she is not, the board could be looking at a 2-2 partisan deadlock. Thus, we very likely may see several significant decisions come out of the NLRB in the next few weeks. Chief among these is the board’s new election rules, but we may also see significant case decisions dealing with employer e-mail policies and whether temporary employees can be included in a bargaining unit with regular employees.
By Robert Dubault