Preparing for Emergencies

in an Age of Epidemics,

Storms & Workplace Violence

Terri Solomon

Shareholder

Littler, New York

Ben Huggett

Shareholder

Littler, Philadelphia

Celeste Yeager

Shareholder

Littler, Dallas

Steve Biddle

Shareholder

Littler, Phoenix

Mental Illness:

How to Identify Risk

Within Confines of the Law

• Is Mental Health

Screening Currently

Required for Pilots and

Others in Safety-Sensitive

Positions?

Mental Illness

Mental Illness

• Should Mental Health

Screening Be Required

for Pilots and Others in

Safety-Sensitive

Positions?

• 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

Public Violence or

Workplace Violence?

• Aurora – Movie Theater

• Sandy Hook – School

• Germanwings – Plane

All public places but also workplaces

• 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

• 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

• 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

• 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?

• 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

• 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

• 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

• 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

• 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

• 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

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

• 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

• 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

• 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

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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

OSHA

• Employers cannot:

– Discipline

– Discharge

– Discriminate

Against workers who

exercise their OSHA

rights, including voicing

concerns about a

potential virus exposure

24

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

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

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?

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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?

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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

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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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

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

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

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

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

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

The Future of

Workplace Safety

• 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

• 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

• 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

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

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

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

• 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

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

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

• 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

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

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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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© 2015 Littler Mendelson, P.C.